IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

CINCINNATI DIVISION 

NATIONAL REPUBLICAN SENATORIAL 

COMMITTEE, et al., 

 Plaintiffs, 

v. 

FEDERAL ELECTION COMMISSION, et al., 

 

Defendant.

No. 1:22-cv-639 

Hon. Douglas R. Cole

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ MOTION TO CERTIFY 

QUESTION TO THE EN BANC COURT OF APPEALS

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TABLE OF CONTENTS

Page

i 

TABLE OF AUTHORITIES ......................................................................................................... ii 

INTRODUCTION ......................................................................................................................... 1 

BACKGROUND ........................................................................................................................... 7 

A. Legal Framework ......................................................................................................... 7 

1. FECA’s Restrictions On Political Parties’ Political Speech ............................... 7 

a. Contribution Limits And Reporting Requirements .................................... 8 

b. Coordinated Party Expenditure Limits On Political Speech ...................... 9 

c. Congress’s Selective Exclusion Of Certain Coordinated 

Spending From The Coordinated Party Expenditure Limits ................... 11 

d. The Burdens On Parties Making Independent Party 

Expenditures To Influence Federal Elections .......................................... 12 

2. Supreme Court Decisions ................................................................................. 14 

B. This Case .................................................................................................................... 16 

SUMMARY OF THE ARGUMENT .......................................................................................... 18 

ARGUMENT ............................................................................................................................... 19 

I. THE COORDINATED PARTY EXPENDITURE LIMITS VIOLATE 

THE FIRST AMENDMENT .............................................................................................. 19 

A. The Coordinated Party Expenditure Limits Do Not Prevent Quid 

Pro Quo Corruption ................................................................................................... 20 

B. Even If The Coordinated Party Expenditure Limits Actually 

Prevented Quid Pro Quo Corruption, They Are Not Closely 

Drawn Means Of Doing So........................................................................................ 25 

II. COLORADO II DOES NOT PRECLUDE CERTIFICATION .......................................... 27 

A. Colorado II Does Not Control ................................................................................... 27 

B. Colorado II Should Be Overruled.............................................................................. 30 

CONCLUSION ............................................................................................................................ 38 

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CASES

Ams. for Prosperity Found. v. Bonta, 

141 S. Ct. 2373 (2021) .................................................................................................25, 26, 27 

Ariz. Free Enter. Club’s Freedom Club PAC v. Bennett, 

564 U.S. 721 (2011) .................................................................................................................19 

Bread Pol. Action Comm. v. FEC, 

455 U.S. 577 (1982) .................................................................................................................19 

Buckley v. Valeo, 

424 U.S. 1 (1976) (per curiam) ........................................................................................ passim 

Cal. Democratic Party v. Jones, 

530 U.S. 567 (2000) ...................................................................................................................1 

Cal. Med. Ass’n v. FEC, 

453 U.S. 182 (1981) .................................................................................................................19 

Citizens United v. FEC, 

558 U.S. 310 (2010) ......................................................................................................... passim 

Colo. Republican Fed. Campaign Comm. v. FEC, 

518 U.S. 604 (1996) ......................................................................................................... passim 

Davis v. FEC, 

554 U.S. 724 (2008) .................................................................................................................25 

Eu v. S.F. Cnty. Democratic Cent. Comm., 

489 U.S. 214 (1989) .......................................................................................................1, 31, 33 

FEC v. Colo. Republican Fed. Campaign Comm., 

213 F.3d 1221 (10th Cir. 2000) ...............................................................................................26 

FEC v. Colo. Republican Fed. Campaign Comm., 

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

FEC v. Cruz, 

142 S. Ct. 1638 (2022) ..................................................................................................... passim 

Holmes v. FEC, 

823 F.3d 69 (D.C. Cir. 2016) .....................................................................................4, 6, 19, 30 

Holmes v. FEC, 

875 F.3d 1153 (D.C. Cir. 2017) (en banc) ...............................................................................21 

Janus v. AFSCME, 

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

Jones v. Jegley, 

947 F.3d 1100 (8th Cir. 2020) ...........................................................................................21, 27

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Libertarian Nat’l Comm., Inc. v. FEC, 

924 F.3d 533 (D.C. Cir. 2019) (en banc) .............................................................................5, 28 

McCutcheon v. FEC, 

572 U.S. 185 (2014) ......................................................................................................... passim 

Monitor Patriot Co. v. Roy, 

401 U.S. 265 (1971) .................................................................................................................19 

Republican Party of Minn. v. White, 

536 U.S. 765 (2002) .................................................................................................................24 

Roberts v. U.S. Jaycees, 

468 U.S. 609 (1984) ...................................................................................................................1 

Williams-Yulee v. Fla. Bar, 

575 U.S. 433 (2015) .................................................................................................................24 

Zimmerman v. City of Austin, 

881 F.3d 378 (5th Cir. 2018) .............................................................................................21, 27 

STATUTES 

52 U.S.C. § 30101 .................................................................................................................. passim

52 U.S.C. § 30102 ........................................................................................................................8, 9 

52 U.S.C. § 30104 ............................................................................................................................9 

52 U.S.C. § 30110 .................................................................................................................. passim 

52 U.S.C. § 30116 .................................................................................................................. passim

52 U.S.C. § 30125 ............................................................................................................................7 

Consolidated and Further Continuing Appropriations Act, 2015, 

Pub. L. No. 113-235, 128 Stat. 2130 (2014) ............................................................................12 

Ala. Code § 17-5-15 .......................................................................................................................24 

Ariz. Rev. Stat. § 16-911 ...............................................................................................................24 

Ariz. Rev. Stat. § 16-912 ...............................................................................................................24 

Ariz. Rev. Stat. § 16-915 ...............................................................................................................24 

Cal. Gov’t Code § 85301 ...............................................................................................................24 

Cal. Gov’t Code § 85400 ...............................................................................................................24 

10 Ill. Comp. Stat. 5/9-8.5..............................................................................................................24 

Ind. Code § 3-9-2-1 et seq..............................................................................................................24 

Iowa Code § 68A.101 et seq. .........................................................................................................24 

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Kan. Stat. § 25-4153 ......................................................................................................................24 

Ky. Rev. Stat. § 121.150 ................................................................................................................24 

La. Stat. § 18:1505.2 ......................................................................................................................24 

Miss. Code § 23-15-1021 ...............................................................................................................24 

N.C. Gen. Stat. § 163-278.13 .........................................................................................................24 

N.D. Cent. Code § 16.1-08.1-01 et seq. .........................................................................................24 

N.J. Stat. § 19:44A-29....................................................................................................................24 

N.M. Stat. § 1-19-34.7 ...................................................................................................................24 

N.Y. Elec. Law § 14-114 ...............................................................................................................24 

Neb. Rev. Stat. ch. 32, art. 16 ........................................................................................................24 

Ohio Rev. Code § 3517.102 ...........................................................................................................24 

Or. Rev. Stat. § 260.005 et seq. .....................................................................................................24 

25 Pa. Cons. Stat. § 3241 et seq. ....................................................................................................24 

S.D. Codified Laws § 12-27-7 .......................................................................................................24 

S.D. Codified Laws § 12-28-8 .......................................................................................................24 

Tex. Elec. Code § 253.001 et seq...................................................................................................24 

Utah Code § 20A-11-101 et seq.....................................................................................................24 

Va. Code § 24.2-945 ......................................................................................................................24 

Vt. Stat. tit. 17, § 2941 ...................................................................................................................24 

W. Va. Code § 3-8-5c ....................................................................................................................24 

Wis. Stat. § 11.1101 .......................................................................................................................24 

Wis. Stat. § 11.1104 .......................................................................................................................24 

Wyo. Stat. § 22-25-102 ..................................................................................................................24 

OTHER AUTHORITIES

Robert F. Bauer, The Parties’ Struggles in the Political “Market”: 

Can Regulation Solve This Problem—Should It, and If So, How?, 

54 Hous. L. Rev. 881 (2017)..........................................................................................6, 13, 36 

11 C.F.R. § 100.89 .........................................................................................................................12 

11 C.F.R. § 109.20 .....................................................................................................................1, 10 

11 C.F.R. § 109.21 .........................................................................................................................13 

11 C.F.R. § 100.26 .........................................................................................................................11 

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11 C.F.R. § 109.32 .........................................................................................................................11 

11 C.F.R. § 109.33 ...........................................................................................................................2 

11 C.F.R. § 109.37 ................................................................................................................. passim

11 C.F.R. § 110.6 .............................................................................................................................9 

FEC, Contribution Limits.............................................................................................................8, 9 

FEC, Coordinated Party Expenditure Limits.................................................................................11 

Richard L. Hasen, Buckley Is Dead, Long Live Buckley: The New Campaign 

Finance Incoherence of McConnell v. Federal Election Commission, 

153 U. Pa. L. Rev. 31 (2004) ...................................................................................................30 

Samuel Issacharoff, Democracy’s Deficits, 

85 U. Chi. L. Rev. 485 (2018) .................................................................................................37 

Samuel Issacharoff, Outsourcing Politics: The Hostile Takeover of Our 

Hollowed-Out Political Parties, 54 Hous. L. Rev. 845 (2017) ...................................31, 36, 37 

Gary C. Jacobson & Jamie L. Carlson, Politics of Congressional Elections

(9th ed. 2016) ...........................................................................................................................10 

970 Mass. Code Regs. 1.04 ............................................................................................................24 

N.J. Admin. Code § 19:25-11.2 .....................................................................................................24 

Richard H. Pildes, Romanticizing Democracy, Political Fragmentation, 

and the Decline of American Government, 124 Yale L.J. 804 (2014) .....................................37 

Gerald F. Seib, For Saner Politics, Try Stronger Parties, 

Wall St. J. (Apr. 20, 2023) ...................................................................................................6, 36 

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INTRODUCTION 

The National Republican Senatorial Committee (NRSC) and National Republican 

Congressional Committee (NRCC), two national committees of the Republican Party, along with 

Senator J.D. Vance and former Congressman Steve Chabot, have brought this case to safeguard 

the most “basic” right “in our democracy”—“the right to participate in electing our political 

leaders.” McCutcheon v. FEC, 572 U.S. 185, 191 (2014) (plurality opinion). 

Political parties’ expression of support for their candidates, particularly in the context of 

elections, lies “at the core of our ... First Amendment freedoms” and is entitled to the most robust 

constitutional protection. Eu v. S.F. Cnty. Democratic Cent. Comm., 489 U.S. 214, 222-23 (1989). 

It is undeniable that “the First Amendment ‘has its fullest and most urgent application’ to speech 

uttered during a campaign for political office,” id. at 223, and that “implicit in the right to engage 

in activities protected by the First Amendment” is “a corresponding right to associate with others” 

in those activities, Roberts v. U.S. Jaycees, 468 U.S. 609, 622 (1984). Indeed, “[r]epresentative 

democracy in any populous unit of governance is unimaginable without the ability of citizens to 

band together in promoting among the electorate candidates who espouse their political views.” 

Cal. Democratic Party v. Jones, 530 U.S. 567, 574 (2000). But under the Federal Election 

Campaign Act of 1971 (FECA or the Act), Congress restricts political parties from doing what the 

First Amendment entitles them to do: fully associate with and support their own nominees for 

federal office. 

Specifically, among Congress’s improper efforts to “reduc[e] what it saw as wasteful and 

excessive campaign spending,” Colo. Republican Fed. Campaign Comm. v. FEC, 518 U.S. 604, 

618 (1996) (Colorado I) (plurality opinion), FECA strictly limits how much of their own money 

political party committees can spend in cooperation, or “coordination,” with their general election 

candidates to influence federal elections, 52 U.S.C. § 30116(d)(1)-(3); see 11 C.F.R. § 109.20 

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(defining “coordinated”). These monetary limits on so-called “coordinated party expenditures”—

which, in general, are tied to nothing but the voting-age population and cost of living in a given 

state—inhibit broad swaths of the parties’ core political speech and associational activities, 

particularly their ability to work cooperatively with their nominees. 

And FECA’s assault on First Amendment freedoms does not end there: The Act actually 

strips some party committees—including the NRSC and the NRCC (and their Democratic 

counterparts)—of the right to make their own “coordinated party expenditures” in support of their 

party’s nominees beyond the minimal direct contributions otherwise allowed. Indeed, the NRSC 

and the NRCC cannot engage in coordinated party expenditures with Republican nominees for the 

Senate or House at all, unless they first obtain express permission from the Republican National 

Committee or the state party committee in a nominee’s home state to spend pursuant to that 

committee’s limit. See 11 C.F.R. § 109.33. 

In addition to being severe, Congress’s imposition of these burdens on political party 

speech and association is selective. These limits apply to certain coordinated party spending made 

for the purpose of “influencing any election for Federal office,” 52 U.S.C. § 30101(9)(A)(i), such 

as coordinated party political advertising, which the FEC defines as “party coordinated 

communication[s],” id. § 30116(d), (h); 11 C.F.R. § 109.37. But Congress has exempted from the 

limits other coordinated spending made for the purpose of influencing federal elections. This 

includes certain party committee payments on general election campaign mailers and other getout-the vote efforts for nominees involving the party’s use of volunteers, 52 U.S.C. 

§ 30101(8)(B)(ix), (xi), (9)(B)(viii), (ix), as well as national party committees’ payments for any 

“legal proceedings” involving federal candidates, id. § 30116(a)(9). 

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Congress’s limits on coordinated party expenditures are also redundant. FECA already 

imposes contribution limits—so-called “base limits”—that strictly limit how much money any one 

donor may contribute to a party committee or federal candidate. Id. § 30116(a)(1); see

McCutcheon, 572 U.S. at 192 (plurality opinion). The Act also prevents circumvention of these 

base limits through its “earmarking rule,” which treats any funds directed by a donor toward a 

federal candidate through an intermediary as the donor’s direct contribution to the candidate, 

subject to that donor’s base limit. 52 U.S.C. § 30116(a)(8); see McCutcheon, 572 U.S. at 194 

(plurality opinion). And FECA imposes strict requirements on party and candidate committees to 

disclose their receipts and disbursements of funds regularly, including special reporting of any 

funds earmarked toward a specific candidate. The FEC now promptly makes all of those 

disclosures available to the world online, at https://www.fec.gov. 

All funds raised and spent by a party committee for the purpose of influencing federal 

elections must comply with the base limits, earmarking rule, and disclosure requirements. 

Congress’s imposition of the coordinated party expenditure limits as “an additional measure” on 

top of those rules thus reflects a “prophylaxis-upon-prophylaxis approach” to campaign-finance 

restrictions—“a significant indicator” that these limits are unconstitutional. FEC v. Cruz, 142 

S. Ct. 1638, 1652-53 (2022); see McCutcheon, 572 U.S. at 221 (plurality opinion) (similar). The 

government “bears the burden of proving the constitutionality of” the severe, selective, and 

redundant coordinated party expenditure limits, McCutcheon, 572 U.S. at 210 (plurality opinion), 

and it cannot do so. To the contrary, Congress’s selective speech rationing flunks any applicable 

level of First Amendment scrutiny. 

Fortunately, FECA provides a mechanism to redress this constitutional violation quickly. 

The Act directs that this Court “immediately shall certify all questions of constitutionality of this 

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Act” to appropriate Court of Appeals sitting en banc. 52 U.S.C. § 30110. This Court should 

therefore certify the following question to the en banc Sixth Circuit: 

Whether the limits on coordinated party expenditures in 52 U.S.C. § 30116 violate 

the First Amendment, either on their face or as applied to party spending in 

connection with “party coordinated communications” as defined in 11 C.F.R. 

§ 109.37. 

The en banc Sixth Circuit, in turn, should hold that these limits violate the First Amendment. 

This Court should grant certification—and the Sixth Circuit should hold that FECA’s 

coordinated party expenditure limits are unconstitutional—even though a 5-4 Supreme Court 

upheld the limits as they stood in 2001 in FEC v. Colorado Republican Federal Campaign 

Committee, 533 U.S. 431 (2001) (Colorado II). So long as this Court concludes that the question 

presented is not “wholly insubstantial, obviously frivolous, and obviously without merit”—quite 

“a low bar”—the Court should “accelerat[e] potential Supreme Court review” using FECA’s 

certification provision. Holmes v. FEC, 823 F.3d 69, 71-74 (D.C. Cir. 2016) (cleaned up). And 

here, the question presented is far from frivolous. Under FECA as it stands today and current 

Supreme Court precedent, the coordinated party expenditure limits fail even the “closely drawn” 

test, the least demanding test applied to campaign-finance restrictions. Moreover, Colorado II does 

not even control this challenge, much less render it frivolous for purposes of § 30110. 

First, Colorado II “does not control here” both because FECA’s coordinated party 

expenditure limits now “operate against a distinct legal backdrop” that did not exist 22 years ago 

and because this “challenge raises distinct legal arguments that [Colorado II] did not consider.” 

McCutcheon, 572 U.S. at 200-02 (plurality opinion). Since Colorado II, Congress has enacted a 

variety of exemptions to the coordinated party expenditure limits, including for payments on 

recounts, contests, and litigation. 52 U.S.C. § 30116(a)(9). Congress’s selective imposition of the 

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speech only underscores the First Amendment problem. This case thus presents “a different 

statutory regime” than the one Colorado II Court confronted and therefore merits “plenary 

consideration.” McCutcheon, 572 U.S. at 200 (plurality opinion); see Libertarian Nat’l Comm., 

Inc. v. FEC, 924 F.3d 533, 546 (D.C. Cir. 2019) (LNC) (en banc) (considering argument certified 

under § 30110 that in light of § 30116(a)(9), “[w]hat was constitutional before ... is constitutional 

no longer”). 

In addition, this challenge presents “different legal arguments, at a different point in the 

development of campaign finance regulation.” McCutcheon, 572 U.S. at 203 (plurality opinion). 

For example, in Colorado II, the challenger’s brief did not even mention the phrase “quid pro quo 

corruption,” but instead engaged with the FEC’s argument, embraced by the Colorado II majority, 

that preventing “undue influence on an officeholder’s judgment” was a sufficiently weighty 

interest to justify campaign-finance restrictions, 533 U.S. at 441, 465. But the Supreme Court has 

since made clear that this interest in “limit[ing] the general influence a contributor may have over 

an elected official” cannot support such restrictions. Cruz, 142 S. Ct. at 1652. Instead, it has held 

that there is “only one permissible ground for restricting political speech: the prevention of ‘quid 

pro quo’ corruption or its appearance.” Id.; accord McCutcheon, 572 U.S. at 192, 207 (plurality 

opinion). The Colorado II majority sidestepped the question whether the coordinated party 

expenditure limits can be justified as preventing quid pro quo corruption, see 533 U.S. at 456 n.18, 

perhaps because the government “presented no evidence at all of corruption or the perception of 

corruption” in that case, id. at 475 (Thomas, J., dissenting). That issue is squarely presented here. 

The challenger in Colorado II likewise did not contend that the coordinated party 

expenditure limits failed the “closely drawn” test for a lack of narrow tailoring. The Colorado II

majority too never used the phrase “narrowly tailored” and upheld the coordinated party 

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expenditure limits even though “better tailored” alternatives to pursue the purported interest were 

available. Id. at 462 (majority opinion). Since then, however, the Supreme Court has clarified that 

even the closely drawn test requires “narrow[] tailor[ing]” of campaign-finance restrictions to 

“achieve” the sole permissible goal of preventing quid pro quo corruption. McCutcheon, 572 U.S. 

at 218 (plurality opinion). It also has made clear that the base limits, earmarking rule, and 

disclosure requirements “are themselves prophylactic measures” that both prevent quid pro quo

corruption and cast doubt on the constitutionality of any “prophylaxis-upon-prophylaxis approach” 

through which Congress piles even more restrictions upon political speech and association—yet 

another issue that Colorado II did not address. Cruz, 142 S. Ct. at 1652-53. 

Second, even if Colorado II controlled this case, that would not preclude certification. To 

the contrary, certification is required so long as there is “a non-frivolous argument in favor of 

overturning that precedent.” Holmes, 823 F.3d at 74. And here, the grounds for overruling 

Colorado II are far from frivolous. Colorado II was grievously wrong the day it was decided, and 

developments in the 22 years since then have only further gutted its foundations. For example, in 

addition to the statutory changes discussed above, the Colorado II majority’s assumption that 

“political parties are dominant players, second only to the candidates themselves, in federal 

elections,” 533 U.S. at 450, is belied today, when “Super PACS are ... moving in the direction of 

assuming most of the functions of parties,” Robert F. Bauer, The Parties’ Struggles in the Political 

“Market”: Can Regulation Solve This Problem—Should It, and If So, How?, 54 Hous. L. Rev. 

881, 899 (2017); see, e.g., Gerald F. Seib, For Saner Politics, Try Stronger Parties, Wall St. J. 

(Apr. 20, 2023), https://on.wsj.com/3o2DWKc (“Donna Brazile, a former Democratic national 

chairwoman, says that ‘over the years, the parties have been weakened by the new landscape where 

super PACs ... have a stranglehold.’”). Nor has Colorado II produced any legitimate “reliance 

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interests.” Citizens United v. FEC, 558 U.S. 310, 365 (2010). Especially given that “stare decisis

applies with perhaps least force of all to decisions that wrongly denied First Amendment rights,” 

Janus v. AFSCME, 138 S. Ct. 2448, 2478 (2018), to the extent that Colorado II governs this case, 

now is the time for the Supreme Court to reconsider Colorado II. Certification is necessary to 

facilitate that review. For all of these reasons, the Court should certify the crucial constitutional 

question presented in this case to the en banc Sixth Circuit. 

BACKGROUND 

A. Legal Framework 

1. FECA’s Restrictions On Political Parties’ Political Speech 

Every dollar that a political party committee receives for the purpose of influencing an 

election for federal office is a “contribution” and must be collected in compliance with FECA’s 

contribution limits and prohibitions—including the earmarking rule—and publicly reported to the 

FEC. 52 U.S.C. § 30101(8)(A)(i), (9)(A)(i); id. § 30116(a)(8). In fact, since Congress amended 

FECA through the Bipartisan Campaign Reform Act of 2002 (BCRA), national party committees 

have been banned from raising (or spending) any so-called “soft money” that is not subject to 

FECA’s “limitations, prohibitions, and reporting requirements,” id. § 30125(a), and state and local 

parties have been prohibited from using any funds not subject to such restrictions in connection 

with any “federal election activity,” id. § 30125(b). 

FECA’s regulation of party committees’ political speech does not end there. The Act also 

restricts how party committees can spend the limited contributions they raise to support their own 

candidates in federal elections. FECA provides party committees with three principal options for 

spending their money to provide financial support to their federal candidates: (i) contributions, (ii) 

coordinated party expenditures, and (iii) “independent expenditures.” And it imposes strict dollar 

limitations on the first two categories. 

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a. Contribution Limits And Reporting Requirements 

Under FECA, political party committees must maintain a general operating bank account 

from which they can make any contributions or expenditures “for the purpose of influencing any 

election for Federal office.” 52 U.S.C. § 30102(h); see id. § 30101(8)(A)(i) (defining 

“contribution”), (9)(A)(i) (defining “expenditure”). The Act imposes various dollar limits on 

contributions made to or from these general operating accounts. Id. § 30116(a). 

On the front end, FECA restricts how much money party committees can receive in their 

general operating accounts, by imposing base contribution limits on the amounts individuals and 

other political committees can contribute to them. For the 2023-2024 election cycle, the base limit 

on individual contributions is $41,300 per year to the general operating accounts of the national 

party committees and $10,000 per year to the general operating accounts of any state, district, and 

local party committees. Id. § 30116(a)(1)(B), (a)(2)(B); FEC, Contribution Limits, https://bit.ly/

3JKuNNk (last visited May 16, 2023). 

On the back end, FECA caps how much the party committees can give to any federal 

candidate or campaign, through a $5,000 base limit per election. 52 U.S.C. § 30116(a)(2)(A).1 The 

Act similarly imposes base limits on contributions from individuals and other political committees 

to federal candidates and their campaigns, which are adjusted annually for inflation. Id. § 30116(c). 

For individuals, the base limit currently stands at $3,300 per election for the 2023-2024 election 

cycle. Id. § 30116(a)(1)(A); see Contribution Limits, supra. 

To prevent evasion of the base contribution limits on direct candidate support, Congress 

has imposed the earmarking rule, which applies the base limits to funds that are “in any way 

earmarked or otherwise directed through an intermediary or conduit” to a federal candidate. 52 

1

 A national party committee and its senatorial committee, however, may together contribute up to 

$57,800 to a senatorial candidate’s campaign. 52 U.S.C. § 30116(h); Contribution Limits, supra. 

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U.S.C. § 30116(a)(8); see 11 C.F.R. § 110.6 (defining “earmarked”). Under FECA, earmarked 

contributions “shall be treated as contributions from [the earmarking] person to such candidate,” 

52 U.S.C. § 30116(a)(8), and thus count against that donor’s contribution limit to the candidate. 

So, if “a donor gives money to a party committee but directs the party committee to pass the 

contribution along to a particular candidate, then the transaction is treated as a contribution from 

the original donor to the specified candidate,” and governed by the $3,300 base limit for donor 

contributions. McCutcheon, 572 U.S. at 194 (plurality opinion); see Contribution Limits, supra. 

FECA and FEC regulations also impose substantial public-disclosure requirements on 

party committees and candidates. These rules demand the periodic reporting of all receipts and 

disbursements, including detailed itemization of certain transactions, 52 U.S.C. § 30104(b), such 

as contributions aggregating more than $200 received from any one individual by a party 

committee in a calendar year or a candidate campaign in an election cycle, id. § 30104(b)(3). These 

rules further require special disclosure of contributions earmarked by a donor to a federal candidate 

through an intermediary. Id. § 30102(b); 11 C.F.R. § 110.6(c). Specifically, “[t]he intermediary or 

conduit of the earmarked contribution shall report the original source and the recipient candidate 

or authorized committee to the Commission and to the recipient candidate or authorized 

committee.” 11 C.F.R. § 110.6(c)(1)(i). The recipient candidate’s committee, moreover, must 

disclose on its report to the FEC its receipt of any earmarked contribution and, in certain cases, the 

identity of the intermediary that forwarded the earmarked contribution. Id. § 110.6(c)(2). All of 

these disclosures are publicly available on the FEC’s website. 

b. Coordinated Party Expenditure Limits On Political Speech 

On top of the base contribution limits, earmarking rule, and disclosure requirements, FECA 

also imposes limits on what political parties can spend in coordination with their candidates. In 

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particular, FECA restricts the ability of political party committees to make any “expenditure[s]”—

defined as “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,” 52 U.S.C. § 30101(9)(A)(i)—“coordinated” with their chosen candidates in connection 

with the general election, id. § 30116(d). The FEC has construed “coordinated” to mean “made in 

cooperation, consultation or concert with, or at the request or suggestion of, a candidate, a 

candidate’s authorized committee, or a political party committee.” 11 C.F.R. § 109.20(a). 

Coordinated party expenditures subject to § 30116 include, and traditionally have consisted 

primarily of, expenditures in connection with so-called “party coordinated communication[s],” as 

now defined by the FEC at 11 C.F.R. § 109.37. See Gary C. Jacobson & Jamie L. Carlson, Politics 

of Congressional Elections 98 (9th ed. 2016) (“Coordinated party expenditures can be made for 

almost any campaign activity .... The party committees typically foot the bill for conducting polls, 

producing campaign ads, and buying broadcast media time—major expenses in areas where 

technical expertise is essential.”); Exhibit A – Declaration of Jason Thielman in Support of Motion 

to Certify (Thielman Decl.) ¶¶ 14-15 (Doc. 19-1, PageID##177-178); Exhibit B – Declaration of 

Christopher Winkelman in Support of Motion to Certify (Winkelman Decl.) ¶¶ 14, 16 (Doc. 19-2, 

PageID##187-188); Exhibit C – Declaration of J.D. Vance in Support of Motion to Certify (Vance 

Decl.) ¶ 9 (Doc. 19-3, PageID#196). In general, a party coordinated communication is any form 

of general public political advertising—including ads disseminated “by means of any broadcast, 

cable, or satellite communication, newspaper, magazine, outdoor advertising facility, mass 

mailing, or telephone bank to the general public,” or “placed for a fee on another person’s 

website”—paid for by a party committee and coordinated with a candidate or campaign that 

expressly advocates the election or defeat of a clearly identified federal candidate. 11 C.F.R. 

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§ 109.37(a)(2)(ii); id. § 100.26 (defining “[p]ublic communication”). Yet the term also captures 

party communications that may lack express advocacy, including coordinated party advertising 

that (1) simply republishes campaign materials prepared by a candidate or campaign or (2) merely 

references a candidate within certain timeframes before the general election. Id. § 109.37(a)(2)(i), 

(iii). 

For presidential, Senate, and House races in states with only one representative, Congress 

has set the coordinated party expenditure limits according to a formula that multiplies by two cents 

the voting age population of the United States or the State, depending on the federal office 

involved. 52 U.S.C. § 30116(d)(2)-(3). The exact amounts under this formula are updated annually 

by the FEC. In states with more than one representative, Congress has set a coordinated party 

expenditure limit of $10,000, which is also increased annually based on the Cost-of-Living 

Adjustment. Id. § 30116(d)(3)(B). Congress’s restriction of coordinated party expenditures thus 

turns on the office sought, the state where the election will occur, the voting-age population, and 

inflation. See id. For 2023, the limits range from $118,700 to $3,623,400 for Senate candidates, 

and from $59,400 to $118,700 for House candidates. 11 C.F.R. § 109.32; FEC, Coordinated Party 

Expenditure Limits, https://bit.ly/3DcUySP (last visited May 16, 2023). 

c. Congress’s Selective Exclusion Of Certain Coordinated Spending 

From The Coordinated Party Expenditure Limits 

While FECA imposes coordinated party expenditure limits on political advocacy at the 

core of the First Amendment’s protections, such as “party coordinated communication[s],” 11 

C.F.R. § 109.37, it also permits parties to engage in unlimited coordinated spending for certain 

purposes. For example, the Act has long allowed state and local party committees to coordinate 

freely with their party’s general election nominees on payments for production and dissemination 

of “campaign materials”—“such as pins, bumper stickers, handbills, brochures, posters, party 

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tabloids, and yard signs”—distributed in connection with volunteer activities on behalf of the 

nominees, including party mass mailers disseminated with some degree of help from volunteers. 

52 U.S.C. § 30101(8)(B)(ix), (9)(B)(viii). They may also do so in connection with certain voterregistration and get-out-the-vote activities for their party’s presidential and vice-presidential 

nominees, id. § 30101(8)(B)(xi), (9)(B)(ix), which the FEC defined to include voter-registration 

and get-out-the vote phone banks operated by volunteers, 11 C.F.R. § 100.89(e). 

Moreover, in 2014, Congress amended the Act to add three new exceptions to the 

coordinated party expenditure limits applicable to the national party committees. Consolidated and 

Further Continuing Appropriations Act, 2015, Pub. L. No. 113-235, div. N, § 101, 128 Stat. 2130, 

2772-73 (2014). FECA now permits donors to contribute up to triple the base limit for a national 

party committee’s general account—$123,900 instead of $41,300—into “segregated account[s]” 

to be used to defray expenses incurred with respect to “presidential nominating convention[s],” 

“the construction, purchase, renovation, operation, and furnishing of one or more headquarters 

buildings of the party,” and “election recounts and contests and other legal proceedings.” 52 U.S.C. 

§ 30116(a)(1)(B), (a)(9). Congress expressly provided that FECA’s coordinated party expenditure 

limits do not apply to “expenditures made from any of the[se] accounts.” Id. § 30116(d)(5).2 

d. The Burdens On Parties Making Independent Party Expenditures To 

Influence Federal Elections 

FECA also permits party committees to engage in unlimited “independent

expenditure[s]”—that is, expenditures “expressly advocating the election or defeat of a clearly 

identified [federal] candidate” that are “not made in concert or cooperation with or at the request 

or suggestion of [any] candidate” (or the candidate’s committee or agents). 52 U.S.C. § 30101(17). 

2

 Instead, the only cap is that regardless of coordination, a party cannot spend more than $20 

million on a single convention. 52 U.S.C. § 30116(a)(9)(A). The NRSC and the NRCC do not 

have segregated accounts relating to presidential nominating conventions. 

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But by strictly limiting coordinated party expenditures and thereby forcing party committees to 

make independent expenditures if they wish to use their money to advocate for their party 

nominees unfettered, the Act imposes “additional costs and burdens” on party committees “to 

promote the party message.” Colorado II, 533 U.S. at 470 (Thomas, J., dissenting). 

In particular, party committees must take significant steps to ensure they could plainly 

satisfy the FEC that their independent expenditures are truly independent of a candidate and his 

campaign in the event of an FEC enforcement action. The FEC already presumes that “the ordinary 

means for a party to provide support is to make coordinated expenditures,” id. at 469, and its 

regulations defining what “conduct” makes a party communication “coordinated” are expansive 

and ill-defined, 11 C.F.R. §§ 109.37(a)(3), 109.21(d)(1)-(6). 

Thus, to avoid any doubt of their independence, party committees have traditionally used 

“firewalls” to establish separate units solely for the purpose of making independent expenditures. 

See Colorado II, 533 U.S. at 470 (Thomas, J., dissenting). These fire-walled independent 

expenditure units (IE units) must operate separately from the party’s main operation and brain trust 

and independently from the supported candidates (though any advertisements they make will 

merely state that they were paid for by the party committee), making them inherently inefficient, 

potentially counterproductive to a unified message, confusing to voters, and redundantly 

expensive. See Bauer, supra, at 906 (“[S]eparation of party and candidate is unhealthy for 

candidate and party alike and introduces inefficiencies and disruptions into the political market.”).

Indeed, in addition to covering ordinary operating costs, a party committee that establishes an IE 

unit must use hard money from its operating account to “rent and furnish an office, hire staff, and 

pay other administrative costs” that “duplicate many of the functions already being undertaken by 

other party offices.” Colorado II, 533 U.S. at 470 (Thomas, J., dissenting). And unlike coordinated 

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expenditures, “independent expenditures do not qualify for the lowest unit rates on the purchase 

of broadcasting time.” Id. (cleaned up); see Thielman Decl. ¶ 22 (Doc. 19-1, PageID##179-178); 

Winkelman Decl. ¶ 22 (Doc. 19-2, PageID##189-190). All the while, in the absence of any 

coordination on messaging, content, or timing, an IE unit’s communications may prove undesired 

or even disfavored by the main operation of the committee itself or the party nominee whom the 

messaging is supposed to promote. See Thielman Decl. ¶ 23 (Doc. 19-1, PageID#180); Winkelman 

Decl. ¶ 23 (Doc. 19-2, PageID#190). 

2. Supreme Court Decisions 

In Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam), the Supreme Court adopted a 

framework for First Amendment challenges to the two forms of campaign-finance restrictions: 

expenditure limits and contribution limits. While acknowledging that both sets of restrictions 

“operate in an area of the most fundamental First Amendment activities,” the Court adopted 

different tests for determining the constitutionality of each. Id. at 14. 

The Supreme Court held that expenditure restrictions “limit political expression ‘at the core 

of our electoral process and of the First Amendment freedoms.’” Id. at 39. Effective political 

dialogue, the Court explained, requires the spending of money. As the Court observed, “virtually 

every means of communicating ideas in today’s mass society requires the expenditure of money,” 

as “[t]he electorate’s increasing dependence on television, radio, and other mass media for news 

and information has made these expensive modes of communication indispensable instruments of 

effective political speech.” Id. at 19. Restrictions on expenditures therefore hamper freedom of 

expression by limiting “the number of issues discussed, the depth of their exploration, and the size 

of the audience reached” and thus represent substantial, not theoretical, constraints on the quantity 

and diversity of political speech. Id. Put differently, “[b]eing free to engage in unlimited political 

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expression subject to a ceiling on expenditures is like being free to drive an automobile as far and 

as often as one desires on a single tank of gasoline.” Id. at 19 n.18. The Court therefore subjected 

expenditure limits to “the exacting scrutiny applicable to limitations on core First Amendment 

rights of political expression.” Id. at 44-45. 

By contrast, the Supreme Court determined that controlling the amount one may contribute 

to a candidate or political committee “entails only a marginal restriction upon the contributor’s 

ability to engage in free communication.” Id. at 20. The Court therefore subjected contribution 

limits to a less demanding test, “closely drawn” scrutiny, holding that such limits are constitutional 

so long as the government “demonstrates a sufficiently important interest and employs means 

closely drawn to avoid unnecessary abridgment of associational freedoms.” Id. at 25. 

As originally enacted, FECA prohibited party committees from making even independent 

expenditures in support of candidates. In 1996, a fractured Supreme Court applied exacting 

scrutiny and held that this expenditure limit violated the First Amendment. Colorado I, 518 U.S. 

at 613-19 (plurality opinion). 

Five years later, however, the Supreme Court upheld FECA’s limits on coordinated party 

expenditures in Colorado II by a 5-4 vote. 533 U.S. at 437. The majority deemed coordinated party 

expenditures to be “the functional equivalent of contributions” and therefore applied the “closely 

drawn” test, not exacting scrutiny, to resolve the First Amendment challenge to the coordinated 

party expenditure limits. Id. at 446-47, 456 (emphasis added). 

Under its application of that standard, the majority upheld the coordinated party 

expenditure limits “on the theory that unlimited coordinated spending by a party raises the risk of 

corruption (and its appearance).” Id. at 456. The majority recognized that the government has a 

sufficiently important interest in “combating political corruption” to justify campaign-finance 

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restrictions. Id. But it broadly defined “corruption” to encompass not only “quid pro quo

agreements, but also ... undue influence on an officeholder’s judgment” purportedly flowing from 

“the corrupting influence of large contributions to candidates.” Id. at 441, 456 n.18. And it 

expressly did not address whether the coordinated party expenditure limits prevent “quid pro quo” 

corruption, id. at 456 n.18, perhaps because the government “presented no evidence at all of 

corruption or the perception of corruption,” id. at 475 (Thomas, J., dissenting). Instead, the 

majority believed that the limits were justified to prevent individual donor access to and influence 

upon candidates and officeholders. See id. at 458-61 (majority opinion). 

In applying its formulation of the “closely drawn” test, the majority rejected the argument 

that “the First Amendment demands a response better tailored” to the ills the majority identified 

“than a limitation on [coordinated] spending.” Id. at 462. The majority also never used the term 

“narrowly tailored” in its opinion. 

Justice Thomas—joined by Chief Justice Rehnquist in part and Justices Scalia and 

Kennedy in full—dissented. Id. at 465-82 (Thomas, J., dissenting). The four dissenters reasoned 

that the coordinated party expenditure limits trigger, and fail, strict scrutiny as unconstitutional 

restrictions on expenditures. Id. at 466-74. In the alternative, they explained that the coordinated 

party expenditure limits fail “closely drawn” scrutiny because there is no evidence “that 

coordinated expenditures by parties give rise to corruption” and “there are better tailored 

alternatives” available to prevent corruption. Id. at 474, 481. 

B. This Case 

On November 4, 2022, the NRSC, the NRCC, Senator Vance, and former Representative 

Chabot brought this suit for declaratory and injunctive relief against the enforcement of § 30116’s 

limits on coordinated party expenditures. ECF 1 (Doc. 1, PageID##1-28). Senator Vance, who 

intends to run for federal office again, desires to engage in coordinated party expenditures in a 

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future federal campaign beyond the limits in § 30116, and would do so but for this statutory 

provision and the threat of FEC enforcement. Vance Decl. ¶¶ 10-14 (Doc. 19-3, PageID##196-

197). 

The NRSC and the NRCC likewise wish to exceed these limits to support candidates across 

the country in future elections, Senator Vance included, but will not do so while the risk of FEC 

enforcement exists. Thielman Decl. ¶¶ 26-29 (Doc. 19-1, PageID#181); Winkelman Decl. ¶¶ 26-

29 (Doc. 19-2, PageID#191). Until then, both the NRSC and the NRCC will be forced to rely on 

their segregated IE units to support their preferred candidates. Thielman Decl. ¶¶ 24, 28-29 (Doc. 

19-1, PageID##180-181); Winkelman Decl. ¶¶ 24, 28-29 (Doc. 19-2, PageID##190-191). Creating 

and maintaining these units imposes significant costs on the Committees, and their IE units also 

cannot purchase television advertisements at the lowest-unit rates. Thielman Decl. ¶¶ 18-24 (Doc. 

19-1, PageID##178-180); Winkelman Decl. ¶¶ 18-24 (Doc. 19-2, PageID##188-190). These 

burdens put the NRSC and the NRCC at a competitive disadvantage vis-à-vis Super PACs in 

securing donations. Thielman Decl. ¶ 25 (Doc. 19-1, PageID#180); Winkelman Decl. ¶ 25 (Doc. 

19-2, PageID#190). 

To avoid these harms in future campaigns, Plaintiffs brought this lawsuit and invoked 

FECA’s judicial review provision, which allows “the national committee of any political party[] 

or any individual eligible to vote in any election for the office of President” to “institute such 

actions in the appropriate district court of the United States, including actions for declaratory 

judgment, as may be appropriate to construe the constitutionality of any provision of this Act.” 52 

U.S.C. § 30110. While the FEC has acknowledged that the NRSC and the NRCC each qualify as 

a “national committee of a political party” and that Senator Vance and former Representative 

Chabot are individuals “eligible to vote” in presidential elections, it asked this Court to dismiss 

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this case for lack of venue or transfer it. ECF 10 at 1, 2, 8 (Doc. 10, PageID##81-82, 91). This 

Court denied the FEC’s motion on May 9. ECF 18, at 1-19 (Doc. 18, PageID##151-169). 

SUMMARY OF THE ARGUMENT 

This Court should certify to the en banc Sixth Circuit the question whether FECA’s 

coordinated party expenditure limits violate the First Amendment, and the Sixth Circuit should 

hold that they do. This question easily qualifies as non-frivolous, which is the only legal 

determination this Court must make at this stage. 

I. The coordinated party expenditure limits violate the First Amendment even under 

“closely drawn” scrutiny. These limits do not pursue the prevention of quid pro quo corruption at 

all, either by party committees or individual donors. Indeed, Congress’s selective imposition of 

this additional prophylactic measure on some coordinated payments, while permitting others, 

confirms these limits instead seek to further the constitutionally impermissible purpose of reducing 

excessive campaign spending. And even if the coordinated party expenditure limits somehow 

addressed quid pro quo corruption in the first place, they would not be a narrowly tailored response 

to that problem, as less restrictive alternatives are readily available. 

II. Colorado II does not preclude certification. This challenge involves both a different 

statutory regime and different legal arguments from the ones at issue in Colorado II, which means 

the en banc Sixth Circuit can give the question here plenary consideration. But even if Colorado 

II controls, this Court should still certify the question because Plaintiffs have presented a 

compelling—and certainly non-frivolous—argument that Colorado II cannot be sustained under 

the traditional factors justifying stare decisis. The poor quality of its reasoning, the significant 

legal and factual developments in the 22 years since it was handed down, and the absence of any 

reliance interests all cut against retaining this distortion of the First Amendment any longer. 

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ARGUMENT 

“The district court immediately shall certify all questions of constitutionality of [FECA] to 

the United States court of appeals for the circuit involved, which shall hear the matter sitting en 

banc.” 52 U.S.C. § 30110. This Court thus is “required” to “ma[k]e findings of fact and then 

certif[y] the case” to the en banc Sixth Circuit “for a determination on the constitutional questions 

raised”—here, whether FECA’s coordinated party expenditure limits violate the First Amendment. 

Bread Pol. Action Comm. v. FEC, 455 U.S. 577, 580 (1982). While this Court need not certify 

“frivolous” questions, Cal. Med. Ass’n v. FEC, 453 U.S. 182, 192 n.14 (1981), whether FECA’s 

coordinated party expenditure limits contravene the First Amendment easily clears that “low bar,” 

Holmes, 823 F.3d at 72-74. 

I. THE COORDINATED PARTY EXPENDITURE LIMITS VIOLATE THE FIRST 

AMENDMENT. 

FECA’s coordinated party expenditure limits strike “precisely” where the First 

Amendment has its “most urgent application”: “the conduct of campaigns for political office.” 

Monitor Patriot Co. v. Roy, 401 U.S. 265, 272 (1971). There can be “no doubt” that the limits 

“burden First Amendment electoral speech” and association. Cruz, 142 S. Ct. at 1651; see, e.g.,

Ariz. Free Enter. Club’s Freedom Club PAC v. Bennett, 564 U.S. 721, 746 (2011) (“[W]e do not 

need empirical evidence to determine that the law at issue is burdensome.”). Even the Colorado II

majority acknowledged that the limits “burden” speech and “associational efficiency,” 533 U.S. at 

450 n.11 & 453, and the dissenters further explained just how severely they do so, see id. at 467-

74 (Thomas, J., dissenting). Plaintiffs continue to suffer those harms today. See Thielman Decl. 

¶¶ 11-29 (Doc. 19-1, PageID##176-181); Vance Decl. ¶¶ 11-14 (Doc. 19-3, PageID##196-197); 

Winkelman Decl. ¶¶ 11-29 (Doc. 19-2, PageID##186-191). The government therefore “bears the 

burden of proving the constitutionality of” these selective, redundant limits on political speech and 

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association, McCutcheon, 572 U.S. at 210 (plurality opinion), and cannot do so here under any 

applicable level of scrutiny or on any conceivable record. While Colorado II held that coordinated 

party expenditure limits should be treated as “contribution limits” subject to “closely drawn” 

scrutiny under Buckley, 533 U.S. at 456, these limits, as they stand today, fail even this less 

demanding test. Under “closely drawn” scrutiny, the government must still prove that the 

challenged law both furthers “a sufficiently important interest and employs means closely drawn” 

to do so, McCutcheon, 572 U.S. at 197 (plurality opinion). The government cannot satisfy either 

requirement. 

A. The Coordinated Party Expenditure Limits Do Not Prevent Quid Pro Quo 

Corruption. 

Even under “‘closely drawn’ scrutiny,” the government “must prove at the outset that it is 

in fact pursuing a legitimate objective.” Cruz, 142 S. Ct. at 1652. It cannot do so here. 

1. The Supreme Court “has recognized only one permissible ground for restricting 

political speech: the prevention of ‘quid pro quo’ corruption or its appearance.” Id.; accord 

McCutcheon, 572 U.S. at 206 (plurality opinion). This “captures the notion of a direct exchange 

of an official act for money”—i.e., “dollars for political favors.” McCutcheon, 572 U.S. at 192 

(plurality opinion). “Campaign finance restrictions that pursue other objectives ... impermissibly 

inject the Government ‘into the debate over who should govern.’” Id. Thus, Congress may not 

limit political speech “to reduce the amount of money in politics,” “to level electoral opportunities 

by equalizing candidate resources,” or “to limit the general influence a contributor may have over 

an elected official.” Cruz, 142 S. Ct. at 1652. Moreover, “[i]ngratiation and access ... are not 

corruption”; preventing donor ingratiation with, access to, or influence over elected officials is 

therefore not a sufficiently weighty interest to support campaign-finance restrictions. Citizens 

United, 558 U.S. at 360; accord McCutcheon, 572 U.S. at 192, 208 (plurality opinion). 

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To show that a speech restriction prevents quid pro quo corruption or its appearance, the 

government must “do more than ‘simply posit the existence of the disease sought to be cured’”; it 

must show that the challenged restriction itself is necessary to prevent quid pro quo corruption. 

Cruz, 142 S. Ct. at 1653. This rule has special significance in analyzing the constitutionality of 

FECA provisions because “the base limits themselves”—as well as the earmarking rule and 

disclosure requirements—are “prophylactic measure[s]” that prevent corruption and its 

appearance. McCutcheon, 572 U.S. at 221 (plurality opinion). Thus, when the government goes 

beyond those measures and layers overlapping campaign-finance restrictions “on top,” it takes a 

“prophylaxis-upon-prophylaxis approach.” Id.; accord Cruz, 142 S. Ct. at 1653. In that scenario, 

courts must “greet the assertion of an anticorruption interest ... with a measure of skepticism,” and 

insist that the government produce “‘record evidence or legislative findings’ demonstrating the 

need to address a special problem” that the base limits themselves do not already address. Cruz, 

142 S. Ct. at 1652-53; see McCutcheon, 572 U.S. at 221 (plurality opinion); Holmes v. FEC, 875 

F.3d 1153, 1161 (D.C. Cir. 2017) (en banc); Jones v. Jegley, 947 F.3d 1100, 1106 (8th Cir. 2020); 

Zimmerman v. City of Austin, 881 F.3d 378, 392 (5th Cir. 2018). And if there is any doubt whether 

the government has carried its demanding burden, “the First Amendment requires [courts] to err 

on the side of protecting political speech rather than suppressing it.” Cruz, 142 S. Ct. at 1653; 

accord McCutcheon, 572 U.S. at 209 (plurality opinion).

2. The government cannot satisfy that demanding burden here. There is no evidence 

that coordinated party expenditures in excess of the limits Congress has imposed would give rise 

to “‘quid pro quo’ corruption”—the “direct exchange of an official act for money.” McCutcheon, 

572 U.S. at 192 (plurality opinion). Congress did not even enact the coordinated party expenditure 

limits to address that problem. To the contrary, all indicia “suggest that Congress wrote the Party 

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Expenditure Provision not so much because of a special concern about the potentially ‘corrupting’ 

effect of party expenditures, but rather for the constitutionally insufficient purpose of reducing 

what it saw as wasteful and excessive campaign spending.” Colorado I, 518 U.S. at 618 (plurality 

opinion). “In fact, rather than indicating a special fear of the corruptive influence of political 

parties, the legislative history demonstrates Congress’ general desire to enhance what was seen as 

an important and legitimate role for political parties in American elections.” Id.

Indeed, the notion that a political party committee can corrupt its own candidates makes no 

sense because “[t]he very aim of a political party is to influence its candidate’s stance on issues 

and, if the candidate takes office or is reelected, his votes.” Colorado II, 533 U.S. at 476 (Thomas, 

J., dissenting). “If coordinated expenditures help achieve this aim, the achievement does not 

constitute a subversion of the political process,” let alone quid pro quo corruption, but instead the 

functioning of the political process. Id. at 477 (cleaned up). Perhaps recognizing that “[p]olitical 

parties and their candidates are ‘inextricably intertwined’ in the conduct of an election,” the 

Colorado II majority expressly declined “to reach” whether the coordinated party expenditure 

limits could be “justified by a concern with quid pro quo arrangements and similar corrupting 

relationships between candidates and parties themselves.” Id. at 456 n.18, 469 (majority opinion). 

Nor is there any evidence that coordinated party expenditures somehow invite quid pro 

quo corruption by individual donors. The government produced no such evidence in Colorado II, 

see id. at 475 (Thomas, J., dissenting), and there is simply no plausible argument that the 

coordinated party expenditure limits prevent quid pro quo corruption or “circumvention of the 

base limits” on individual contributions, McCutcheon, 572 U.S. at 193 (plurality opinion). “As an 

initial matter, there is not the same risk of quid pro quo corruption or its appearance when money 

flows through independent actors to a candidate, as when a donor contributes to a candidate 

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directly.” Id. at 210. That is because “[w]hen an individual contributes to a candidate, a party 

committee, or a PAC, the individual must by law cede control over the funds.” Id. at 210-11. Even 

the government has “admit[ted]” that when “the funds are subsequently re-routed to a particular 

candidate, such action occurs at the initial recipient’s discretion—not the donor’s.” Id. at 211. “As 

a consequence, the chain of attribution grows longer, and any credit must be shared among the 

various actors along the way.” Id. “For th[e]se reasons, the risk of quid pro quo corruption is 

generally applicable only to ‘the narrow category of money gifts that are directed, in some manner, 

to a candidate or officeholder,’” not to a political party committee. Id. Furthermore, political parties 

“have numerous members with a wide variety of interests,” making “the influence of any one 

person ... significantly diffused.” Colorado I, 518 U.S. at 647 (Thomas, J., concurring in the 

judgment and dissenting in part). Thus, so long as donors face “uniform” “limits on the amount 

they can give to parties,” “there is little risk that an individual donor could use a party as a conduit 

for bribing candidates.” Id.

Plaintiffs also are not aware of any “real-world examples of” quid pro quo corruption in 

the absence of coordinated party expenditure limits. McCutcheon, 572 U.S. at 217 (plurality 

opinion). As explained, Congress has selectively permitted certain coordinated payments by 

parties. This includes coordinated party expenditures below Congress’s arbitrary limits; certain 

exempt payments for presidential phone banks, party mailers, and other “campaign materials” 

featuring express advocacy disseminated with a sufficient degree of volunteer involvement, 52 

U.S.C. § 30101(8)(B)(ix), (9)(B)(viii), and all coordinated payments from the national party 

committees’ “segregated account[s]” for “presidential nominating convention[s],” “headquarters 

buildings,” and “election recounts and contests and other legal proceedings,” id. § 30116(a)(1)(B), 

(a)(9), (d)(5). Yet Plaintiffs know of no evidence that any of the various categories of coordinated 

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party spending that FECA permits has resulted in “‘quid pro quo’ corruption or its appearance.” 

Cruz, 142 S. Ct. at 1652; see Thielman Decl. ¶ 10 (Doc. 19-1, PageID#176); Winkelman Decl. 

¶ 10 (Doc. 19-2, PageID#186); Vance Decl. ¶ 11 (Doc. 19-3, PageID#196). Presumably, if such 

evidence existed, Congress would have prohibited, rather than permitted, those payments. 

Congress’s allowance of these categories of coordinated payments—including coordinated party 

expenditures up to a dollar threshold based on nothing more than the office sought, state, and 

voting-age population—thus underscores that the coordinated party expenditure limits do not 

prevent “‘quid pro quo’ corruption or its appearance.” Cruz, 142 S. Ct. at 1652. 

Moreover, at least 28 states largely give the parties free rein to make coordinated 

expenditures on behalf of their state-level nominees, even though 17 of these states impose 

generally applicable base limits on contributions from individuals seeking to support the same 

candidates. Plaintiffs are unaware of any evidence of quid pro quo corruption in these states—a 

“significant” sign of a First Amendment problem with FECA’s coordinated party expenditure 

limits. Id. at 1653; see McCutcheon, 572 U.S. at 209 n.7 (plurality opinion).3

Finally, in all events, Congress’s line-drawing between permitted and prohibited 

coordinated spending renders the coordinated party expenditure limits “so woefully 

underinclusive” that Congress could not have adopted them for “th[e] purpose” of preventing quid 

pro quo corruption. Republican Party of Minn. v. White, 536 U.S. 765, 780 (2002); see Williams3 See Ala. Code § 17-5-15; Ariz. Rev. Stat. §§ 16-911(B)(4)(b), 16-912, 16-915; Cal. Gov’t Code 

§§ 85301, 85400; 10 Ill. Comp. Stat. 5/9-8.5(b); Ind. Code § 3-9-2-1 et seq.; Iowa Code § 68A.101 

et seq.; Kan. Stat. § 25-4153(a); Ky. Rev. Stat. § 121.150; La. Stat. § 18:1505.2(H)(1); 970 Mass. 

Code Regs. 1.04(12); Miss. Code § 23-15-1021; Neb. Rev. Stat. ch. 32, art. 16 (repealed); N.J. 

Stat. § 19:44A-29; N.J. Admin. Code § 19:25-11.2; N.M. Stat. § 1-19-34.7; N.Y. Elec. Law 

§ 14-114(1), (3); N.C. Gen. Stat. § 163-278.13; N.D. Cent. Code § 16.1-08.1-01 et seq.; Ohio Rev. 

Code § 3517.102(B); Or. Rev. Stat. § 260.005 et seq.; 25 Pa. Cons. Stat. § 3241 et seq.; S.D. 

Codified Laws §§ 12-27-7, 12-28-8; Tex. Elec. Code § 253.001 et seq.; Utah Code § 20A-11-101 

et seq.; Vt. Stat. tit. 17, § 2941(a); Va. Code § 24.2-945; W. Va. Code § 3-8-5c; Wis. Stat. 

§§ 11.1101(1), 11.1104(5); Wyo. Stat. § 22-25-102. 

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Yulee v. Fla. Bar, 575 U.S. 433, 448-49 (2015) (“[U]nderinclusiveness can raise ‘doubts about 

whether the government is in fact pursuing the interest it invokes’” and “can also reveal that a law 

does not actually advance a compelling interest.”). For example, there is no principled basis under 

the First Amendment for the applicability of the coordinated party expenditure limits to rest on 

whether some desired level of volunteer effort is involved in a party’s dissemination of certain 

general election advocacy, such as campaign mailers and presidential get-out-the-vote phone 

banks. Yet FECA does precisely that. Compare 52 U.S.C. § 30101(8)(B)(ix), (9)(B)(viii), with id. 

§ 30116(d). Nor is there any good explanation for why Congress permits political parties to engage 

in unlimited coordinated spending—from accounts with base donation limits three times as high 

as those governing their general accounts—for “election recounts and contests and other legal 

proceedings,” for instance, but not for political advertisements. Id. § 30116(a)(9); see Thielman 

Decl. ¶ 17 (Doc. 19-1, PageID#178); Winkelman Decl. ¶ 17 (Doc. 19-2, PageID#188). “[G]iven 

Congress’ judgment that liberalized limits for” coordinated party expenditures in select areas “do 

not unduly imperil anticorruption interests, it is hard to imagine how the denial of liberalized limits 

to” coordinated party expenditures more generally “can be regarded as serving anticorruption goals 

sufficiently to justify the resulting constitutional burden.” Davis v. FEC, 554 U.S. 724, 741 (2008). 

B. Even If The Coordinated Party Expenditure Limits Actually Prevented Quid 

Pro Quo Corruption, They Are Not Closely Drawn Means Of Doing So. 

In any event, even if the “prophylaxis-upon-prophylaxis” coordinated party expenditure 

limits somehow addressed quid pro quo corruption, they still would not be a “closely drawn” 

response to that concern. McCutcheon, 572 U.S. at 218, 221 (plurality opinion). Recent Supreme 

Court decisions underscore that this test requires “rigorous” review—specifically, the government 

must show the challenged law is “narrowly tailored” to “achieve” the interest of preventing quid 

pro quo corruption. Id. at 197, 218; see Ams. for Prosperity Found. v. Bonta, 141 S. Ct. 2373, 2383 

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(2021) (AFP) (explaining that “exacting scrutiny” for “compelled disclosure requirements,” 

including in the “campaign finance” realm, requires that the requirements “be narrowly tailored to 

the government’s asserted interest”). As part of that inquiry, courts must ask whether there are 

“alternatives available” that would serve the government’s interest in preventing quid pro quo 

corruption, while “avoiding ‘unnecessary abridgment’ of First Amendment rights.” McCutcheon, 

572 U.S. at 221 (plurality opinion). The government must therefore “demonstrate its need” for the 

coordinated party expenditure limits “in light of any less intrusive alternatives.” AFP, 141 S. Ct. 

at 2386. And courts must “be particularly diligent in scrutinizing the law’s fit” where, as here, it 

is a “prophylaxis-upon-prophylaxis approach.” McCutcheon, 572 U.S. at 221 (plurality opinion). 

The government cannot show that the coordinated party expenditure limits are narrowly 

tailored to preventing quid pro quo corruption. The base limits, earmarking rule, and disclosure 

requirements already provide the appropriate alternative means by which Congress or the FEC can 

“minimize[] the potential for abuse of the campaign finance system” without imposing a limit or 

“ceiling on speech” of party committees. Id. at 223. “[G]iven that ‘few if any contributions to 

candidates will involve quid pro quo arrangements,’” the base contribution limits, the earmarking 

rule, and public-disclosure requirements “are themselves prophylactic measures,” designed to 

prevent quid pro quo corruption and circumvention of candidate contribution limits. Cruz, 142 

S. Ct. at 1652; see McCutcheon, 572 U.S. at 223-24 (plurality opinion). Indeed, through the 

earmarking rule, Congress foresaw the risk of “an individual us[ing] the party as a conduit to 

channel money to specified candidates,” and “foreclosed it.” FEC v. Colo. Republican Fed. 

Campaign Comm., 213 F.3d 1221, 1232 (10th Cir. 2000), rev’d by Colorado II, 533 U.S. 431; see 

McCutcheon, 572 U.S. at 222-23 (plurality opinion) (explaining that “the earmarking rules” 

“already prohibit[]” not only explicit, but “implicit agreements to circumvent the base limits”). 

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And the Supreme Court has emphasized that public “disclosure often represents a less restrictive 

alternative to flat bans on certain types or quantities of speech,” and “[w]ith modern technology, 

disclosure now offers a particularly effective means of arming the voting public with information” 

and providing “robust protections against corruption.” McCutcheon, 572 U.S. at 223-24 (plurality 

opinion). If Congress is concerned about the efficacy of those existing measures, it can tighten 

them before turning to the speech rationing of the coordinated party expenditure limits. See id. at 

222-24. 

By contrast, “even if” coordinated party expenditures could raise a legitimate quid pro quo

“concern in some cases,” Congress’s “indiscriminate” imposition of these speech limits “in all 

cases would not be justified.” AFP, 141 S. Ct. at 2387. The coordinated party expenditure limits 

therefore do not “fit” the objective of preventing quid pro quo corruption. McCutcheon, 572 U.S. 

at 218 (plurality opinion). Instead, they violate the First Amendment. See id.; Cruz, 142 S. Ct. at 

1653; Jones, 947 F.3d at 1107; Zimmerman, 881 F.3d at 395. 

II. COLORADO II DOES NOT PRECLUDE CERTIFICATION. 

While Colorado II upheld FECA’s coordinated party expenditure limits as they stood in 

2001, that ruling does not prevent this Court from certifying the question presented for two reasons. 

First, Colorado II does not control this challenge, meaning the en banc Sixth Circuit is free to hold 

that the coordinated party expenditure limits as they stand today violate the First Amendment. 

Second, even if Colorado II barred the Sixth Circuit from considering the issue afresh, Plaintiffs 

have presented a non-frivolous argument why the Supreme Court should overrule that decision. 

A. Colorado II Does Not Control. 

Colorado II does not preclude Plaintiffs’ challenge for two reasons. First, the coordinated 

party expenditure limits that FECA “imposes operate against a distinct legal backdrop” that did 

not exist at the time Colorado II was decided in 2001. McCutcheon, 572 U.S. at 200 (plurality 

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opinion). In 2014, Congress approved unlimited coordinated payments in other forms, such as for 

“presidential nominating convention[s],” party “headquarters buildings,” and “election recounts 

and contests and other legal proceedings.” 52 U.S.C. § 30116(a)(9). As explained, these exceptions 

have rendered FECA’s coordinated party expenditure limits fatally underinclusive (to the extent 

they were not so before). See supra Pt. I.A. 

That “statutory ... change[] in the campaign finance arena” means that Plaintiffs’ 

“substantial First Amendment challenge to the system of [coordinated party expenditure] limits 

currently in place” deserves “plenary consideration.” McCutcheon, 572 U.S. at 202-03 (plurality 

opinion). In McCutcheon, for instance, the Supreme Court held that Buckley’s upholding of “the 

aggregate limit in place” in 1976 did “not control” the Court’s resolution of a new constitutional 

challenge to “the aggregate limits in place” in 2014 because “statutory safeguards against 

circumvention have been considerably strengthened since Buckley was decided.” Id. at 200. Given 

that “different statutory regime,” the Court considered the issue without any need to apply the 

traditional stare decisis factors. Id. Similarly, in LNC—a case certified under § 30110—the en 

banc D.C. Circuit gave plenary consideration to a First Amendment challenge to the “sort of 

contribution limits that the Supreme Court upheld in McConnell” because the 2014 amendment 

had “radically altered FECA’s nature and structure” by “introduc[ing] gradations into the political 

party contribution limit where none had been before.” 924 F.3d at 546-47; see id. at 546-52. 

Accordingly, the Sixth Circuit is free to consider this “new scheme,” as Colorado II “did not 

address the propriety of a regime with these exceptions, the presence of which ‘can raise doubts 

about whether the government is in fact pursuing the interest it invokes’ or ‘reveal that a law does 

not actually advance’ that interest.” Id. at 553-54 (Griffith, J., concurring in party and dissenting 

in part). 

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Second, “[i]n addition to accounting for [this] statutory ... change[],” Plaintiffs’ “challenge 

raises distinct legal arguments that [Colorado II] did not consider”—another fact calling for 

“plenary consideration.” McCutcheon, 572 U.S. at 202-203 (plurality opinion). For example, the 

challenger’s brief in Colorado II did not even mention “quid pro quo corruption,” but instead 

addressed the government’s theory that “large coordinated expenditures by political parties ... may 

be used to exert influence over legislators’ behavior while in office,’” Resp. Br. at 33, Colorado 

II, 533 U.S. 431 (No. 00-191), 2001 WL 43228 (Colorado II Resp. Br.). The Colorado II majority 

therefore never addressed whether the coordinated party expenditure limits can be justified as 

preventing quid pro quo corruption or its appearance, see 533 U.S. at 456 n.18, perhaps because 

the government “presented no evidence at all of corruption or the perception of corruption” in that 

case, id. at 475 (Thomas, J., dissenting). Here, Plaintiffs’ challenge zeroes in on the coordinated 

party expenditure limits’ failure to address quid pro quo corruption, see supra Part I.A, which the 

Supreme Court has since made clear is the only “permissible ground for restricting political 

speech,” Cruz, 142 S. Ct. at 1652; accord McCutcheon, 572 U.S. at 207 (plurality opinion). 

Similarly, the challenger in Colorado II never contended that “closely drawn” scrutiny 

required the coordinated party expenditure limits to be narrowly tailored, but instead assumed that 

“narrow tailoring” was “required” only under “strict scrutiny.” Colorado II Resp. Br. at 47-48. 

Accordingly, the Colorado II majority never even used the phrase “narrowly tailored” in its 

analysis, much less applied that test. Instead, it upheld the limits even though “better tailored” 

alternatives were available, noting that it would “not throw out the contribution limits for unskillful 

tailoring” either. 533 U.S. at 462, 463 n.26. By contrast, Plaintiffs here raise the challenge that the 

coordinated party expenditure limits are not “narrowly tailored,” see supra Part I.B, in part because 

they represent a “prophylaxis-upon-prophylaxis approach” layered “on top” of the base limits, 

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earmarking rule, and disclosure requirements, all of which—as the Supreme Court has since 

held—are “prophylactic measures” better tailored to prevent quid pro quo corruption, 

McCutcheon, 572 U.S. at 221-24 (plurality opinion); Cruz, 142 S. Ct. at 1652. 

B. Colorado II Should Be Overruled. 

Even if Colorado II were controlling here, this Court should still certify the question 

presented so that the Supreme Court can rectify FECA’s ongoing abridgement of core First 

Amendment freedoms. While “district courts do not certify ‘frivolous’ constitutional questions” 

under § 30110, “it is entirely possible to mount a non-frivolous argument against what might be 

considered ‘settled’ Supreme Court constitutional law,” including “in the context of federal 

campaign finance law.” Holmes, 823 F.3d at 71-74; see, e.g., Citizens United, 558 U.S. at 365. 

And here, the case for overturning Colorado II under the traditional stare decisis factors is a 

anything but frivolous. To the contrary, three of those factors weigh strongly in favor of overruling 

that decision: “the quality of [its] reasoning,” “developments since the decision was handed down,” 

and the absence of legitimate “reliance” interests. Janus, 138 S. Ct. at 2478-79. 

1. For starters, Colorado II was “poorly reasoned”—an “important factor in 

determining whether a precedent should be overruled.” Id. at 2479. As explained, the coordinated 

party expenditure limits cannot satisfy even “closely drawn” scrutiny. See supra Pt. I. Indeed, even 

commentators generally sympathetic to limiting the role of money in politics have been highly 

critical of Colorado II’s analysis. For example, one described it as producing “jurisprudential 

incoherence” by indulging in “the fiction” that the Court was “adhering to the anticorruption 

rationale of Buckley” while it “reduced the evidentiary burden” and “relaxed the level of scrutiny.” 

Richard L. Hasen, Buckley Is Dead, Long Live Buckley: The New Campaign Finance Incoherence 

of McConnell v. Federal Election Commission, 153 U. Pa. L. Rev. 31, 32, 42-45 (2004); see, e.g., 

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Samuel Issacharoff, Outsourcing Politics: The Hostile Takeover of Our Hollowed-Out Political 

Parties, 54 Hous. L. Rev. 845, 863 (2017) (criticizing the Colorado II majority for acting like 

“naïve regulators”). 

In addition, Colorado II committed a critical threshold error in applying “closely drawn” 

scrutiny in the first place. Colorado II started from the premise that coordinated party expenditure 

limits should be treated as “contribution limits” subject to “closely drawn” scrutiny under Buckley. 

533 U.S. at 456. As an initial matter, the Buckley framework, by exempting contribution 

restrictions from the First Amendment’s strict scrutiny, “denigrates core First Amendment speech” 

and “should be overruled.” McCutcheon, 572 U.S. at 228 (Thomas, J., concurring in the judgment); 

accord Colorado II, 533 U.S. at 465-66 (Thomas, J., dissenting). Instead, strict scrutiny should 

apply to all campaign-finance restrictions, including contribution limits. See McCutcheon, 572 

U.S. at 228 (Thomas, J., concurring in the judgment); accord Colorado II, 533 U.S. at 465-66 

(Thomas, J., dissenting). But in any event, the coordinated party expenditure limits trigger strict 

scrutiny even under Buckley’s framework for at least two reasons. 

First, coordinated party expenditures are, by their very terms, expenditures, not “the 

functional equivalent of contributions.” Colorado II, 533 U.S. at 447 (emphasis added). 

Coordinated party expenditures are the political speech of the party in association with its own 

candidates “during a campaign for political office” and, thus, are entitled to the highest level of 

First Amendment protection. Eu, 489 U.S. at 223; accord McCutcheon, 572 U.S. at 191 (plurality 

opinion). Contributions, by contrast, occur when a donor transfers money and “cede[s] control 

over the funds.” McCutcheon, 572 U.S. at 210-11 (plurality opinion). But that never occurs with 

coordinated party expenditures. See Thielman Decl. ¶ 12 (Doc. 19-1, PageID#177); Vance Decl. 

¶ 10 (Doc. 19-3, PageID#196); Winkelman Decl. ¶ 12 (Doc. 19-3, PageID#187). Instead, the party 

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committee retains ownership and ultimate control over the funds and how they are spent. See id.

A candidate or campaign may suggest or recommend how the money should be spent, or even 

assent to a suggestion originating from the party, but it is ultimately the party committee’s decision 

whether and how to spend its own scarce resources. See id. Thus, under Buckley, coordinated party 

expenditures should be considered expenditures protected by strict scrutiny, not contributions 

implicating a lower level of scrutiny. See 424 U.S. at 197. 

Second, even if one (wrongly) thinks that some “coordinated expenditures are functionally 

equivalent to contributions,” that would not ward off strict scrutiny here, because “[t]he source of 

the ‘contribution’ at issue is a political party, not an individual or a political committee.” Colorado 

II, 533 U.S. at 468 (Thomas, J., dissenting). Buckley excepted contribution limits from strict 

scrutiny on the theory that they impose “little direct restraint” on political speech because they do 

not “in any way infringe the contributor’s freedom to discuss candidates and issues.” 424 U.S. at 

21. The coordinated party expenditure limits, however, do just that, as Plaintiffs’ experience 

shows. See Thielman Decl. ¶¶ 11-29 (Doc. 19-1, PageID##176-181); Vance Decl. ¶¶ 11-14 (Doc. 

19-3, PageID##196-197); Winkelman Decl. ¶¶ 11-29 (Doc. 19-2, PageID##186-191). Thus, 

“[r]estricting contributions by individuals and political committees may, under Buckley, entail only 

a ‘marginal restriction,’ but the same cannot be said about limitations on political parties.” 

Colorado II, 533 U.S. at 469 (Thomas, J., dissenting) (citation omitted). 

Indeed, many forms of coordinated party expenditures “largely resemble, and should be 

entitled to the same protection as, independent expenditures.” Id. at 467. For example, if a “party 

develops a television advertising campaign touting a candidate’s record on education, and the party 

simply consults with the candidate on which time slot the advertisement should run for maximum 

effectiveness,” there is “no constitutional difference between this expenditure and a purely 

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independent one.” Id. at 468 (cleaned up). In addition, such an advertisement is “a clear 

manifestation of the party’s most fundamental political views.” Id. “By restricting such speech,” 

the limits harm “parties’ ‘freedom to discuss candidates and issues’” in contravention of the First 

Amendment. Id. Thus, at a bare minimum, the limits are unconstitutional as applied to party 

spending in connection with “party coordinated communications” as defined in 11 C.F.R. 

§ 109.37—i.e., core political advertising. See supra at 10-11. 

More generally, “[p]olitical parties and their candidates are ‘inextricably intertwined’ in 

the conduct of an election.” Colorado II, 533 U.S. at 469 (Thomas, J., dissenting). “A party 

nominates its candidate; a candidate often is identified by party affiliation throughout the election 

and on the ballot; and a party’s public image is largely defined by what its candidates say and do.” 

Id. “Most importantly, a party’s success or failure depends in large part on whether its candidates 

get elected.” Id. “Because of this unity of interest, it is natural for a party and its candidate to work 

together and consult with one another during the course of the election.” Id. Accordingly, because 

parties are collective political enterprises, see Eu, 489 U.S. at 222-23, “the ordinary means for a 

party to provide support is to make coordinated expenditures,” which means that the coordinated 

party expenditure limits “ha[ve] restricted the party’s most natural form of communication; ha[ve] 

precluded parties from effectively amplifying the voice of their adherents; and ha[ve] had a stifling 

effect on the ability of the party to do what it exists to do.” Colorado II, 533 U.S. at 469-71 

(Thomas, J., dissenting) (cleaned up). In other words, the coordinated party expenditure limits 

infringe both “the [parties’] freedom to discuss candidates and issues,” Buckley, 424 U.S. at 21, 

and their “freedom of association” to support their “standard bearer[s] who ... represent[] the 

party’s ideologies and preferences” in elections, Eu, 489 U.S. at 224. 

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While acknowledging that there is “no doubt” that the coordinated party expenditure limits 

“affected parties’ roles and their exercise of power,” the Colorado II majority dismissed this harm 

on the view “that it is nonetheless possible for parties, like individuals and nonparty groups, to 

speak independently,” and that “‘in reality, political parties are dominant players, second only to 

the candidates themselves, in federal elections.’” 533 U.S. at 449-50 & n.11 (brackets omitted). 

But as explained above, the coordinated party expenditure limits impose significant compliance 

costs on party committees that seek to engage in independent expenditures, which they may do 

only through expensive and redundant IE units, forcing an unnatural (and confusing) split in the 

operation of the party committee itself and between the party committee and its supported 

candidate. See supra at 13-14. Moreover, the Colorado II majority’s view misses the point. A 

federal “law imposing a $1,000 tax on every political newspaper editorial” would trigger, and fail, 

strict scrutiny, “even though it would still be possible for newspapers to print such editorials,” and 

even if newspapers remained the dominant media players under that scheme. 533 U.S. at 471 n.3 

(Thomas, J., dissenting). The same goes for the coordinated party expenditure limits. 

Because these limits cannot survive even the less demanding “closely drawn” test, they 

plainly cannot withstand strict scrutiny. See supra Pt. I. Indeed, in Colorado II, the government 

did “not attempt to argue” that FECA’s coordinated party expenditure limits “satisf[y] strict 

scrutiny.” 533 U.S. at 466 (Thomas, J., dissenting). “Nor could it” have done so, id., as these 

selective, redundant limits neither “promote[] a compelling interest” at all nor “are the least 

restrictive means to further [that] interest,” McCutcheon, 572 U.S. at 197 (plurality opinion). 

2. “Developments since [Colorado II], both factual and legal, have also ‘eroded’ [its] 

‘underpinnings’ and left it an outlier among ... First Amendment cases.” Janus, 138 S. Ct. at 2482. 

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a. Start with legal developments. In addition to the 2014 amendments, see supra Pt. 

II.A, intervening Supreme Court decisions have significantly undermined Colorado II’s already 

flimsy foundation. As the dissenters recognized in 2001, Colorado II is “an ‘anomaly’ in ... First 

Amendment jurisprudence.” Janus, 138 S. Ct. at 2483; see Colorado II, 533 U.S. at 474 (Thomas, 

J., dissenting) (“As this Court made clear just last Term, ‘[w]e have never accepted mere conjecture 

as adequate to carry a First Amendment burden.’ ... Today, the Court has jettisoned this 

evidentiary requirement.”). And the gulf between Colorado II and other First Amendment 

decisions has only grown wider in the decades since. 

For one thing, the Colorado II majority believed that preventing “undue influence on an 

officeholder’s judgment” was sufficient to justify campaign-finance restrictions under the First 

Amendment and sidestepped the question whether the coordinated party expenditure limits can be 

justified as preventing quid pro quo corruption. 533 U.S. at 441, 456 n.18, 465. But the Supreme 

Court has since made clear that there is “only one permissible ground for restricting political 

speech: the prevention of ‘quid pro quo’ corruption or its appearance.” Cruz, 142 S. Ct. at 1652; 

accord McCutcheon, 572 U.S. at 207 (plurality opinion); see id. at 239-40 (Breyer, J., dissenting) 

(noting that Colorado II applied “a considerably broader definition” of “corruption” than what 

current doctrine allows); Citizens United, 558 U.S. at 447 (Stevens, J., concurring in part and 

dissenting in part) (similar). The Colorado II majority’s expansive view of corruption likely 

explains why it treated the fact that “substantial donations turn the parties into matchmakers whose 

special meetings and receptions give the donors the chance to get their points across to the 

candidates” as evidence of “the potential for corruption.” 533 U.S. at 461. But as the Court has 

since made clear, “the possibility that an individual who spends large sums may garner ‘influence 

over or access to’ elected officials or political parties” does not “give rise to [the] quid pro quo

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corruption” justifying limits on speech. McCutcheon, 572 U.S. at 208 (plurality opinion); accord 

Cruz, 142 S. Ct. at 1652. 

In addition, the Court has since replaced the anemic version of “closely drawn” scrutiny 

applied in Colorado II with a “rigorous” form of review. McCutcheon, 572 U.S. at 197, 199 

(plurality opinion). The Colorado II majority never mentioned, much less applied, a “narrow[] 

tailor[ing]” analysis, which is now required under “closely drawn” scrutiny. Id. at 209, 218; see 

supra at 25-26. 

b. The Supreme Court also decided Colorado II against a different factual “backdrop” 

than the one that exists today. Janus, 138 S. Ct. at 2483. 

For example, in 2001, the Colorado II majority dismissed concerns about substantial First 

Amendment harms on the premise that “in reality, political parties are dominant players ... in 

federal elections.” 533 U.S. at 450 (brackets omitted). That claim was dubious at the time, see id.

at 472 n.4 (Thomas, J., dissenting), and the “experience” in the intervening 22 years “has shown 

otherwise,” Janus, 138 S. Ct. at 2483; see, e.g., Seib, supra (“‘The party organizations are so damn 

weak,’ laments Frank Fahrenkopf, former chairman of the Republican National Committee.”). 

Today, for instance, it is “widely accepted” that the rise of “Super PACs,” which “can freely 

receive and spend money to support specific candidates” while “operating independently of 

candidates and parties,” “has been damaging to the political parties.” Bauer, supra, at 899. And 

that harm has been exacerbated by the party expenditure limits, as these “constraints on party 

fundraising make Super PACs a better vehicle for channeling campaign finances.” Issacharoff, 

Outsourcing Politics, supra, at 861. “[O]nce the interaction between party and candidate was 

limited by a principle of non-coordination, ... there was no longer a manifest advantage” to using 

the party for campaigns “as opposed to buying from outside vendors.” Id. at 864-65. Shifting power 

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away from the parties in turn increases polarization, as confirmed by the fact that “states that give 

more freedom to political parties in the campaign-finance system end up with less polarized 

legislatures.” Richard H. Pildes, Romanticizing Democracy, Political Fragmentation, and the 

Decline of American Government, 124 Yale L.J. 804, 837 (2014). 

When Colorado II was decided in 2001, FECA also “permit[ted] unregulated ‘soft money’ 

contributions to a party for certain activities, such as electing candidates for state office ... or for 

voter registration and ‘get out the vote’ drives.” Colorado I, 518 U.S. at 616 (plurality opinion). 

Congress’s passage of BCRA a year later, however, “targeted soft money accumulation by the 

parties,” further diminishing parties’ power by creating an “impetus for the emergence of political 

funding outside the parties.” Issacharoff, Outsourcing Politics, supra, at 866. Indeed, “[b]etween 

2000 and 2008, [non-party] independent expenditures in the federal domain increased by at least 

425%.” Id. 

“Rapid changes in technology” have further undercut Colorado II’s reasoning. Citizens 

United, 588 U.S. at 364. For example, the “rise of low-cost social media” has continued to erode 

the power of the parties as an institutional force. Samuel Issacharoff, Democracy’s Deficits, 85 U. 

Chi. L. Rev. 485, 490 (2018). Conversely, technological advances have made disclosure 

requirements a far more effective (but less restrictive) alternative. See McCutcheon, 572 U.S. at 

224-25 (plurality opinion); supra at 26-27. 

3. Finally, “[n]o serious reliance interests are at stake” in overruling Colorado II. 

Citizens United, 558 U.S. at 365. To the contrary, political parties “have been prevented from 

acting” by being “banned from making [coordinated] expenditures” beyond FECA’s limits. Id. 

And to the extent any legislature “may have enacted bans on [these] expenditures believing that 

those bans were constitutional,” that “is not a compelling interest for stare decisis.” Id. 

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38 

CONCLUSION 

This Court should certify the question presented to the en banc Sixth Circuit. 

May 17, 2023 

Respectfully submitted, 

/s/ Thomas Conerty

Noel J. Francisco* 

Donald F. McGahn II* 

John M. Gore* 

E. Stewart Crosland* 

Brinton Lucas* 

Charles E.T. Roberts* 

JONES DAY 

51 Louisiana Avenue, N.W. 

Washington, DC 20001 

Phone: (202) 879-3939 

Fax: (202) 626-1700 

njfrancisco@jonesday.com 

dmcgahn@jonesday.com 

jmgore@jonesday.com 

scrosland@jonesday.com 

blucas@jonesday.com 

cetroberts@jonesday.com 

T. Elliot Gaiser* 

Thomas Conerty 

Bar No. 101619 

JONES DAY 

325 John H. McConnell Boulevard 

Suite 600 

Columbus, OH 43215 

Phone: (614) 469-3939 

Fax: (614) 461-4198 

egaiser@jonesday.com 

tconerty@jonesday.com 

Counsel for Plaintiffs 

*Admitted pro hac vice 

 

Jessica Furst Johnson* 

HOLTZMAN VOGEL BARAN 

TORCHINSKY & JOSEFIAK PLLC 

2300 N Street, N.W. 

Suite 643A 

Washington, DC 20037 

Phone: (202) 737-8808 

Fax: (540) 341-8809 

jessica@holtzmanvogel.com 

Counsel for National Republican 

Senatorial Committee & National 

Republican Congressional Committee 

 

Case: 1:22-cv-00639-DRC Doc #: 21 Filed: 05/17/23 Page: 44 of 45 PAGEID #: 261
CERTIFICATE OF SERVICE 

I hereby certify that on May 17, 2023, I electronically filed the foregoing with the Clerk of 

Court using the CM/ECF system, which will send notification of this filing to all counsel of record. 

/s/ Thomas Conerty 

Thomas Conerty 

Counsel for Plaintiffs

Case: 1:22-cv-00639-DRC Doc #: 21 Filed: 05/17/23 Page: 45 of 45 PAGEID #: 262