NATIONAL REPUBLICAN SENATORIAL COMMITTEE, ET AL.

Plaintiffs-Appellants,

v.

FEDERAL ELECTION COMMISSION,

Defendant-Appellee.

 

 

 

 

Blake L. Weiman

Charles Kitcher bweiman@fec.gov

Associate General Counsel

ckitcher@fec.gov Attorneys

FEDERAL ELECTION

Jason X. Hamilton COMMISSION

Assistant General Counsel 1050 First Street NE

jhamilton@fec.gov Washington, DC 20463

(202) 694-1650

May 24, 2024

_______________________________________________

_______________________________________________

_____________________________________________

_______________________________________________

_______________________________________________

Case: 24-3051 Document: 47 Filed: 05/24/2024 Page: 1 

No. 24-3051

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

On Certified Constitutional Question from the

United States District Court for the Southern District of Ohio

FOURTH BRIEF

BRIEF OF THE FEDERAL ELECTION COMMISSION

Lisa J. Stevenson Shaina Ward

Acting General Counsel sward@fec.gov

lstevenson@fec.gov
 

Case: 24-3051 Document: 47 Filed: 05/24/2024 Page: 2 

TABLE OF CONTENTS

Page

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

ARGUMENT........................................................................................................2

I. COLORADO II CONTROLS THE CASE BEFORE 

THIS COURT.............................................................................................2

A. The Court Must Reject Appellants’

Facial Challenge...............................................................................2

B. The Court Must Reject Appellants’

As-Applied Challenge ......................................................................7

II. FECA’S COORDINATED PARTY EXPENDITURE 

LIMITS ARE CONSTITUTIONAL ....................................................... 10

A. The Coordinated Party Expenditure Limits Target 

Quid Pro Quo Corruption and Its Appearance by 

Limiting Circumvention of Candidate Base Limits...................... 10

1. Targeting Circumvention of Candidate Base 

Limits Remains a Valid, Constitutionally Sound 

Approach to Reduce Quid Pro Quo Corruption ..................11

2. Coordinated Party Expenditure Limits Reduce a 

Cognizable Threat of Quid Pro Quo Corruption ................ 16

B. The Coordinated Party Expenditure Limits are 

Closely Drawn............................................................................... 22

CONCLUSION.................................................................................................. 28

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TABLE OF AUTHORITIES

Cases Page

Agostini v. Felton, 521 U.S. 203 (1997) ............................................................... 3, 5

Blount v. SEC, 61 F.3d 938 (D.C. Cir. 1995).......................................................... 24

Brown v. Ent. Merchs. Ass’n, 564 U.S. 786 (2011)................................................. 25

Buckley v. Valeo, 424 U.S. 1 (1976)................................................................. passim

Citizens United v. FEC, 558 U.S. 310 (2010)........................................................... 6

Colorado Republican Fed. Campaign Comm. v. FEC,

518 U.S. 604 (1996)....................................................................................... 12, 21

FEC v. Cruz, 596 U.S. 289 (2022).......................................................... 5, 10, 15, 21

Disc. Tobacco City & Lottery, Inc. v. United States,

674 F.3d 509 (6th Cir. 2012).................................................................................. 7

F.C.C. v. Fox Television Stations, Inc.,

556 U.S. 502 (2009)............................................................................................. 20

FEC v. Colorado Republican Fed. Campaign Comm.,

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

FEC v. Nat’l Right to Work Comm., 459 U.S. 197 (1982)...................................... 23

FEC v. NCPAC, 470 U.S. 480 (1985) ..................................................................... 17

Hohn v. United States, 524 U.S. 236 (1998)............................................................. 3

Libertarian Nat’l Comm. v. FEC, 924 F.3d 533 (D.C. Cir. 2019).................... 23, 24

In re Cao, 619 F.3d 410 (5th Cir. 2010).................................................................... 8

John Doe No. 1 v. Reed, 561 U.S. 186 (2010).......................................................... 7

Lair v. Motl, 873 F.3d 1170 (9th Cir. 2017)............................................................ 22

McConnell v. FEC, 540 U.S. 93 (2003).................................................. 7, 20, 15, 25

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McCutcheon v. FEC, 572 U.S. 185 (2014)...................................................... passim

 

 

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Nixon v. Shrink Missouri Gov’t PAC, 528 U.S. 377 (2000).............................. 16, 18

Ognibene v. Parkes, 671 F.3d 174 (2d Cir. 2011)................................................... 22

R.A.V. v. City of St. Paul, 505 U.S. 377 (1992)....................................................... 23

Randall v. Sorrell, 548 U.S. 230 (2006).................................................................. 15

Republican Nat’l Comm. v. FEC, 698 F. Supp. 2d 150 (D.D.C. 2010).............. 7, 15

Republican Nat’l Comm. v. FEC, 561 U.S. 1040 (2010).......................................... 7

Republican Party of La. v. FEC, 219 F. Supp. 3d 86 (D.D.C. 2016) ................. 7, 15

Republican Party of La. v. FEC, 581 U.S. 989 (2017)............................................. 7

Richardson v. Wayne State Univ., 587 F. App’x 284 (6th Cir. 2014)........................ 3

Rodriguez de Quijas v. Shearson/Am. Express, Inc.,

490 U.S. 477, (1989).............................................................................................. 3

Schickel v. Dilger, 925 F.3d 858 (6th Cir. 2019)............................................... 21–22

Taylor v. Buchanan, 4 F.4th 406 (6th Cir. 2021)....................................................... 3

United States v. Davis, 591 F. App’x 473 (6th Cir. 2015) ........................................ 3

Wagner v. Fed. Election Comm’n, 793 F.3d 1 (D.C. Cir. 2015)....................... 17, 24

Williams-Yulee v. Fla. Bar, 575 U.S. 433 (2015).............................................. 23, 24

Wisconsin Right to Life v. FEC, 546 U.S. 410 (2006) .......................................... 7–8

Statutes and Regulations

11 C.F.R. § 109.37..................................................................................................... 8

52 U.S.C. § 30116(a)(8).......................................................................................... 27

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52 U.S.C. § 30116(d) .......................................................................................... 8, 14

Miscellaneous

Advisory Opinion 2019-02 (Bill Nelson for Senate)................................................ 4

2015 Appropriations Act, Pub. L. No. 113–235, 128 Stat. 2130 (2014)............... 4, 5

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INTRODUCTION

The Federal Election Commission’s (“Commission” or “FEC”) opening

brief demonstrated why the Court should reject Appellants’ attempt to overturn the

Supreme Court’s holding in FEC v. Colorado Republican Fed. Campaign Comm.,

533 U.S. 431, 456 (2001) (“Colorado II”), which held that the Federal Election

Campaign Act’s (“FECA” or “Act”) coordinated party expenditure limits are

constitutional. Colorado II forecloses Appellants’ facial and as-applied challenges.

Furthermore, the coordinated party expenditure limits are closely drawn to

carefully balance the constitutional rights at stake with the critical governmental

interest in combating corruption and its appearance. For these two overarching

reasons, each independently sufficient, the Court must reject Appellants’

challenge.

The Third Brief of Plaintiff-Appellants (“Appellants’ Reply” or “App.

Reply”) wrongly suggests that this en banc Court should disregard judicial

hierarchy, affronting basic principles of stare decisis. Appellants also err in

contending that Colorado II left open an as-applied challenge to the same limits on

the same kind of proposed party-candidate coordination that the Supreme Court

carefully considered and upheld. Appellants’ claim that Congress enacted the

limits for an improper purpose contradicts the Supreme Court’s analysis, which

validated Congress’s anticircumvention rationale, and Appellants’ attempt to
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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discredit the FEC’s extensive evidence mostly underscores how extensive and

compelling that evidence is. Appellants’ answer to the potential resurgence of a

corruptive tallying system is no answer at all: their argument that such a scheme

would be legal if they win validates Congress’s concerns necessitating the

challenged limits. Finally, Appellants’ tailoring arguments and proposed blunt

alternatives illustrate that Congress’s chosen means of preventing the actuality and

appearance of corruptive exchanges between donors and candidates, via the

national parties, is closely drawn and constitutional. The certified question should

be decided in the Commission’s favor.

ARGUMENT

I. COLORADO II CONTROLS THE CASE BEFORE THIS COURT

A. The Court Must Reject Appellants’ Facial Challenge

Appellants acknowledge that the Supreme Court “facially uph[eld FECA’s]

coordinated expenditure limits” (App. Reply at 20), but insist that “three

distinctions make all the difference” to support their claim that this Court should

nevertheless rule contrary to Colorado II. (Id. at 21). Not only do these claims

invite the Court to act in a manner directly contrary to Supreme Court and this

Circuit’s own precedent, but the distinctions Appellants spotlight are unpersuasive.

The Court must reject them.

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Attempting to frame Colorado II’s holding as stale (see Compl., R.1, ¶¶ 9,

82, PageID##4, 22 (“Colorado II was wrongly decided”); see also App. Reply at

21-24), Appellants urge the Court to defy the Supreme Court’s clear command that

when a Supreme Court precedent has “direct application in a case,” courts “should

follow the case which directly controls, leaving to [the Supreme] Court the

prerogative of overruling its own decisions.” Agostini v. Felton, 521 U.S. 203, 237

(1997) (quoting Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477,

484, (1989)). Indeed, this Court is bound to follow Colorado II, even if it “appears

to rest on reasons rejected in some other line of decisions.” Id.

This Circuit has repeatedly reaffirmed this important principle. See, e.g.,

Taylor v. Buchanan, 4 F.4th 406, 408 (6th Cir. 2021), cert denied, 142 S. Ct. 1441

(2022) (“Even where intervening Supreme Court decisions have undermined the

reasoning of an earlier decision, we must continue to follow the earlier case if it

‘directly controls’ until the Court has overruled it.”); Richardson v. Wayne State

Univ., 587 F. App’x 284, 286 (6th Cir. 2014) (“Richardson argues those cases were

wrongly decided, but we cannot overrule the Supreme Court.”).1

 Appellants’ facial

challenge “simply ignore[s] the doctrine of stare decisis.” United States v. Davis,

591 F. App’x 473, 475 (6th Cir. 2015). 

See also, e.g., Hohn v. United States, 524 U.S. 236, 252-53 (1998) (“Our

decisions remain binding precedent until we see fit to reconsider them, regardless

of whether subsequent cases have raised doubts about their continued vitality.”).

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In any event, Appellants’ three claimed distinctions wither under scrutiny.

First, Appellants claim that “Congress has materially amended FECA’s coordinated

expenditure regime” through the 2015 Appropriations Act, 2015, Pub. L. No. 113-

235, 128 Stat. 2130, 2772-73 (Dec. 16, 2014). (App. Reply at 21.) But Congress

did not in fact amend the challenged coordinated expenditure limit in that

legislation; the “change” Appellants focus on is Congress’s decision to establish

separate, higher-limited national party accounts for specifically limited purposes —

parties’ funding of conventions, buildings, and legal proceedings. (Second Brief of

the FEC (“FEC Br.”) at 28-29.) There is a material difference between a donor’s

$30,000 contribution to fund her preferred candidate’s TV ads through a party

committee and the same donor’s $100,000 contribution to help the NRSC renovate

its headquarters lobby. The coordinated party expenditure limits that Congress

established in FECA insightfully capture the notion that functionally contributing

to a candidate through a party, as the FEC’s opening brief diagrammed (FEC Br. at

33), or engaging in an informal tally scheme (id.), would eviscerate the $3,300

base limit on direct contribution to candidates. The fact that Congress has allowed

higher limit accounts for specific purposes that by law are “‘not . . . for the purpose

of influencing an election,’” (id. at 28 (quoting Advisory Opinion 2019-02 at 4

(Bill Nelson for Senate) (https://www.fec.gov/files/legal/aos/2019-02/2019-

02.pdf)), does not create any sort of meaningful change in the landscape of party

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coordinated expenditures that are for the purpose of influencing elections – a

distinction that Appellants completely fail to acknowledge.

Second, Appellants argue that the Colorado II’s “free-ranging views of

‘corruption’ and tailoring” are “firmly out of bounds” in light of “current Supreme

Court precedent.” (App. Reply at 22.) As an initial matter, this argument is

foreclosed for the reasons outlined above. See supra p. 7; Agostini, 521 U.S. at

237. Additionally, although Appellants make glancing mention of McCutcheon v.

FEC, 572 U.S. 185 (2014), FEC v. Cruz, 596 U.S. 289 (2022), and the 2015

Appropriations Act, (App. Reply at 22), they conspicuously decline to elaborate on

the cases undergirding this supposed change in law. That is because no such

change has occurred. Colorado II relied on the anticorruption principle of

preventing the circumvention of FECA’s base contribution limits. 533 U.S. at 464-

65; see also Buckley, 424 U.S. at 46-47. McCutcheon and Cruz reiterated that

those base contribution limits are constitutionally sound and appropriately tailored,

serving the “compelling” interest of limiting quid-pro-quo corruption and its

appearance. (FEC Br. at 48 (quoting McCutcheon, 572 U.S. at 199).) Colorado II

thus remains fully consistent with the Supreme Court’s most recent decisions.

In arguing otherwise, Appellants do not seem to dispute that preventing

circumvention is a valid theory of corruption (e.g., App. Reply at 1-2 (suggesting

parenthetically that circumvention is a conceivable theory of corruption).) Instead,

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they have chosen to argue that circumvention was not actually Congress’s purpose

in enacting the challenged limits. (Id.) But the Supreme Court itself has described

this view as unserious, specifically noting in Colorado II that “neither the dissent

nor the Party seriously argues that Congress was not concerned with circumvention

of contribution limits using parties as conduits.” Colorado II, 533 U.S. at 457

n.19.

Third, Appellants continue to stress that the national parties’ alleged

eclipsing by Super PACs is bad policy. (App. Reply at 22-24.) The Commission

has already shown that Appellants’ claims of being overtaken by Super PACs are

factually overstated. (FEC Br. at 58-59 (reciting, inter alia, the billions of dollars

of parties’ funding in recent cycles).) But even if Super PAC funding has “shot

up” in recent years (App. Reply at 23), Appellants fail to address the

Commission’s point (FEC Br. at 56) that the current constitutionally sound legal

landscape is resultant from the Supreme Court’s determination in Citizens United

v. FEC, that independent spending—the defining feature of Super PACs—is

fundamentally different than entirely different party coordinated spending at issue

here. 558 U.S. 310, 357-60 (2010). Super PACs and party committees have

different limits because they are different kinds of organizations and present

different corruption risks. The Supreme Court has “consistently rejected” the kind

of “level[ing of] the playing field” that Appellants seek here, e.g., McCutcheon,

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572 U.S. at 207 (cleaned up), and has repeatedly rebuffed the national parties’

efforts to avoid FECA’s contribution limits, including in the case Appellants cite,

Republican Nat’l Comm. v. FEC, 698 F. Supp. 2d 150 (D.D.C. 2010) (RNC), aff’d,

561 U.S. 1040 (2010) (cited in App. Reply at 23); see also Republican Party of La.

v. FEC, 219 F. Supp. 3d 86, 89 (D.D.C. 2016) (LAGOP), aff’d, 581 U.S. 989

(2017). Appellants’ policy arguments do not alter the legal analysis for

constitutionality, and the Court must follow the Supreme Court’s lead in rejecting

them.

B. The Court Must Reject Appellants’ As-Applied Challenge

Appellants’ as-applied challenge is equally foreclosed by Colorado II. This

is for the simple reason that Appellants’ party coordinated communications

challenge falls squarely within the activity the Court contemplated in its detailed

Colorado II decision. See Disc. Tobacco City & Lottery, Inc. v. United States, 674

F.3d 509, 522 (6th Cir. 2012) (“Plaintiffs label their claims as both facial and asapplied challenges to the Act, but because the ‘plaintiffs’ claim and the relief that

would follow . . . reach beyond the particular circumstances of these plaintiffs,’ the

claims that are raised are properly reviewed as facial challenges to the Act.” (citing

John Doe No. 1 v. Reed, 561 U.S. 186 (2010))).2 But this case does not merely

Appellants’ reliance on Wisconsin Right to Life, Inc. v. FEC is also

misplaced. The footnote Appellants cite simply reiterates that McConnell v. FEC,

540 U.S. 93, 158 (2003), had “not purport[ed] to resolve future as-applied

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challenge the limits as applied to some narrow subset of “specific expenditures”

that the Court was not considering when it decided Colorado II. 533 U.S. at 456

n.17. Indeed, the relief Appellants seek, which includes a judgment that the

coordinated party expenditures limits, including party coordinated communications

regulated under 11 C.F.R. § 109.37, are unconstitutional and therefore

unenforceable (Compl., R.1 at 26, Prayer for Relief, PageID#26), would extend

well beyond the “particular” circumstances of Appellants, and indeed “would

effectively eviscerate the Supreme Court’s holding in Colorado II.” Cao, 619 F.3d

at 428.

Appellants do not dispute either that most of their spending on party

coordinated expenditures are for “party coordinated communications.” Compl.,

R.1 ¶ 65, PageID#16 (emphasis added) (“Traditionally, coordinated party

expenditures under 52 U.S.C. § 30116(d) have primarily consisted of expenditures

on so-called ‘party coordinated communications.’”) (citing 11 C.F.R. § 109.37).

challenges,” to a part of BCRA regulating “electioneering communications.” 546

U.S. 410, 411-12 (2006) (per curiam). Nor does Appellants’ specious argument

that the Supreme Court’s denial of certiorari in In re Cao, 619 F.3d 410 (5th Cir.

2010) (en banc), “support[]” their as-applied challenge (App. Reply at 25) stand to

reason. Similarly here, the alleged as-applied challenge in Cao subsumed the

whole. 619 F.3d at 430 (rejecting “as-applied” claim where it relied on the same

principles rejected in Colorado II, “namely the broad position that coordinated

expenditures may not be regulated”). Furthermore, the denial of certiorari is not

evidence of that supports Appellants’ challenge against Colorado II here. 

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Their past spending is a matter of public record. (FEC Br. at 44-47.) Nor do they

dispute that such communications were what the Supreme Court was focusing on

when it decided the legality of the party coordinated expenditure provision in

Colorado II. (App. Reply at 24-26.)

Because media expenses represent such a large portion of campaign

expenditures, it follows that any “exception [to coordinated expenditure limits] that

allowed parties and candidates to coordinate on media” would “effectively destroy

any remaining limits on coordinated expenditures,” thus creating the same

problems that caused the Colorado II Court to believe that parties could become

vehicles for donors to circumvent contribution limits. (FEC’s Proposed Findings

of Fats (“FEC Facts”), R.43, ¶ 246 PageID#5208 (citing Krasno Cao Report, R.36-

3 at 11, PageID#490).) Applying a “different characterization,” Colorado II, 533

U.S. at 456 n.17, to Appellants’ proposed activities would not be appropriate, and

would effectively require this Court to impermissibly overturn that case. The

Court should not entertain a purported as-applied exception that would swallow the

rule. That Appellants themselves acknowledge the possibility that the Court will

“conclude[] that existing precedent controls” the questions at issue, in urging a

prompt ruling in that event (App. Reply at 26), recognizes the force of stare decisis

in this case.

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II. FECA’S COORDINATED PARTY EXPENDITURE LIMITS ARE

CONSTITUTIONAL

Even if this Court could consider the merits of the constitutional question

anew, or as applied to a vast subset of all coordinated party expenditures, the Court

should uphold FECA’s coordinated party expenditure limits because the dispositive

features of Colorado II’s reasoning hold true today. First, the limits continue to

properly target quid pro quo corruption by attacking a clear avenue for donors to

circumvent candidate base contribution limits. The record compiled by the FEC

demonstrates the risk of abuse inherent in a system permitting unlimited

coordinated party spending. Second, the limits are a closely drawn means of

accomplishing this anticorruption aim, carefully tailored to limit only funds

Congress determined most acutely risk corrupting candidates while not inhibiting

valuable party activity apart from coordinated spending.

A. The Coordinated Party Expenditure Limits Target Quid Pro Quo

Corruption and Its Appearance by Limiting Circumvention of

Candidate Base Limits

Appellants do not contest, nor could they, that campaign finance law has

long served to limit the potential and appearance of donor-candidate quid pro quos

facilitated by donor contributions. See Buckley, 424 U.S. at 26-28; McCutcheon,

572 U.S. at 208; Cruz, 596 U.S. at 306. Yet, Congress relying solely on candidate

base contribution limits to achieve that goal would fall short. That is because there

exist other avenues of campaign spending that allow candidates to control the

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disposition of donors’ funds even where those candidates receive no direct

contribution from the donor. Party coordinated spending is a paradigmatic

example, and thus, the challenged limits precisely regulate the line between party

committees and candidates. (FEC Br. at 51-53.) Because candidate base limits are

themselves valid in targeting quid pro quo corruption, and because coordinated

party expenditures reinforce those limits by preventing their circumvention,

coordinated party expenditure limits target the same sort of quid pro quo corruption

risk.

1. Targeting Circumvention of Candidate Base Limits

Remains a Valid, Constitutionally Sound Approach to

Reduce Quid Pro Quo Corruption

The Supreme Court in Colorado II held that the coordinated party

expenditure limits were constitutional because they aimed to reduce circumvention

of candidate base limits. Colorado II, 533 U.S at 456 (“unlimited coordinated

spending by a party raises the risk of corruption (and its appearance) through

circumvention of valid contribution limits”). That determination remains correct

because, first, Congress enacted the challenged limits with anticircumvention as its

aim, and second, anticircumvention measures operate as a corollary of the base

limits, not a duplicative layer of prophylaxis.

Appellants’ Reply leads off with the unsupported claim that the only

“conceivable explanation” for Congress enacting coordinated party expenditure

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limits is the impermissible purpose of “reduc[ing] what it saw as wasteful and

excessive campaign spending.” (App. Reply at 3-4 (citing Colorado Republican

Fed. Campaign Comm. v. FEC, 518 U.S. 604, 618 (1996) (plurality) (Colorado I).)

This conjecture is explicitly contradicted by the Supreme Court, which later

clarified that the language Appellants erroneously rely on related only to

Congress’s enactment of FECA’s limits on parties’ independent expenditures,

which was consistent with its findings in Buckley on limiting other actors’

independent spending. See Colorado II, 533 U.S. at 457 n.19. “As for the Party

Expenditure Provision’s application to coordinated expenditures, on the other

hand,” the Court continued, “the evidence . . . suggests that the anticircumvention

rationale that justifies other coordinated expenditure limits, see Buckley, 424 U.S.

at 46-47 . . ., is at work here as well.” Id. (emphasis added). As discussed above,

the Court specifically explained that the argument Appellants now make, “that

Congress was not concerned with circumvention of contribution limits using

parties as conduits,” is not worth taking seriously. Id.

The evidence demonstrating that circumvention was at issue includes the

testimony of Mr. Robert Hickmott, Senator Timothy Wirth, Mr. Leon Billings, and

Senator Paul Simon, included in the record here, in addition to the pre-enactment

floor statements of Senators Charles Mathias, Edward Kennedy, and John Pastore

(FEC Br. at 51-52), all attesting to practical concerns of using party contributions,

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coupled with unlimited coordinated expenditures, to circumvent base limits. (See

FEC Facts, R.43, ¶¶ 105, 106, 108, 212, 226, 233, 318, PageID##5152-54, 5196,

5201, 5203, 5233-34.) Appellants’ claim of an improper purpose is belied by the

Supreme Court’s explicit contrary determination and their inability to present

compelling evidence of another purpose.

Equally baseless is Appellants’ effort to find fault in Congress’s coordinated

party expenditures formula, which provides limits in different dollar amounts in

different Senatorial races. (App. Reply at 4-5.) The formula-based limits make

sense (contra id. at 4) following the intuitive notion that smaller-population

constituencies, where less money is needed to convey an electoral message to a

similar proportion of voters as larger-population constituencies, would provide a

riskier context for quid pro quos if the limits were uniform across jurisdictions.

Accordingly, those risks are directly mitigated through comparatively lower

coordinated expenditure limits. Because the limits are premised on only a portion

of party contributions being allocated to coordinated spending (see FEC Br. at 31,

51), a greater number of donors in a jurisdiction enables greater coordinated

spending before rising to a level risking corruption. Far from Appellants’ claim

that “tolerat[ing] a greater risk of such schemes for some candidate[s] . . . than

others” renders the challenged limits suspect (App. Reply at 4), anchoring the

limits, in part, to voting-age population is evidence of Congress carefully targeting

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corruption, recognizing proportionately more coordinated spending can occur in

large-population states before an intolerable specter of quid pro quo arises.3

Neither does Congress’s decision not to ban coordinated party expenditures

establish that it was not targeting quid pro quo corruption and circumvention.

(App. Reply at 5-6.) Section 30116(d), structured as limits rather than a complete

prohibition, reflects Congress’s careful balancing that respects both the Act’s

anticorruption imperative and First Amendment rights of speech and association.

The limits “ensure that parties could meaningfully support their candidates’

campaigns.” (Br. of Amicus Curiae Campaign Legal Ctr. and Citizens for

Responsibility and Ethics in Washington in Supp. of Def.-Appellee at 6 (Doc. No.

41) (“CLC & CREW Br.”).) Even if permitting no coordinated spending activity

would likewise target corruption, that approach would be considerably less closely

drawn to targeting corruption than permitting some coordinated spending. See

infra, Part II.B. That Congress set out to “foreclose quid pro quos through

coordinated party expenditures” (App. Reply. At 5), by less heavy-handed means

than a complete ban reflects its “empirical judgments” about “the precise

Appellants also misapprehend the Commission’s invocation of

competitiveness. (See App. Reply at 4.) The Commission pointed to concentrated

spending in competitive races to show an especially high potential for quid pro quo

corruption, if unlimited coordinated spending were allowed, in those races where

candidates’ fundraising needs become acute enough for donors to leverage into

extracting improper commitments or actions. (FEC Br. at 38-39.)

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restriction necessary to carry out the statute’s legitimate objectives.” Randall v.

Sorrell, 548 U.S. 230, 248 (2006) (plurality opinion) (quoting Buckley, 424 U.S. at

30). In a constitutional challenge where tailoring is at issue, Appellants plainly err

in suggesting that Congress should have used a chainsaw instead of a scalpel.

Finally, McCutcheon’s fact-specific determination that the aggregate limit

was an unnecessary layer of prophylaxis, not a corollary of the candidate base

limits, does not disavow the Supreme Court’s anticorruption and anticircumvention

rationales more broadly. (App. Reply 3-6, n.1.) As described in the Commission’s

opening brief, coordinated party expenditure limits are not the sort of

“prophylaxis-upon-prophylaxis” that is “layered on top” of base limits,

McCutcheon, 572 U.S. at 221, as in McCutcheon and Cruz. (FEC Br. 53-55.) The

limits instead attend to a separate transaction (between parties and candidates) to

ensure the effectiveness of candidate base limits. (Id. at 51-56.) Because the

anticircumvention and quid pro quo corruption rationales originated from Buckley,

424 U.S. at 27-28, 45-48, and were reaffirmed in Colorado II, this justification for

the limits is far from a “post hoc litigation invention.” (App. Reply at 5.) Indeed,

targeting quid pro quo corruption through anticircumvention measures has

remained sound since Colorado II in cases where courts have upheld restrictions

related to party soft money. See McConnell v. FEC, 540 U.S. 93, 137 (2003);

RNC, 698 F. Supp. 2d at 153-54; LAGOP, 219 F. Supp. 3d at 89-90.

15
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2. Coordinated Party Expenditure Limits Reduce a

Cognizable Threat of Quid Pro Quo Corruption

The Commission’s opening brief illustrated a “cognizable risk of corruption”

— a “risk of quid pro quo corruption or its appearance,” McCutcheon 572 U.S. at

210 — stemming from would-be unlimited coordinated party expenditures. (FEC

Br. at 31-44.) To be sure, “[t]he quantum of empirical evidence needed [to uphold

a limit] will vary up or down with the novelty and plausibility of the justification

raised.” Nixon v. Shrink Missouri Gov’t PAC, 528 U.S. 377, 391 (2000). Here, the

record well establishes how donors can use party committee accounts, combined

with parties’ coordinated spending capacity, to provide higher sums to candidates

in exchange for official action. That threat of corruption if coordinated spending

were unlimited is more than “mere conjecture,” id. at 392, and certainly not

“illusory,” Buckley, 424 U.S. at 27. Incredibly, Appellants say actual record

evidence of the corruptive potential that Congress was concerned about — namely,

the tallying system addressed by the Court in Colorado II — can be ignored

because it was “legal,” making it somehow “not proof of (illegal) circumvention.” 

(App. Reply at 12.) Eradicating the specter of illegal corruption surely would be

easier by declaring the trading of dollars for political favors to be legal, but the fact

remains that tallying systems — which one would expect to resurface if Appellants

prevail — are ripe for facilitating actual and apparent corruption. Congress and the

Supreme Court certainly thought so.

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In claiming that “[t]he FEC offers no evidence justifying the limits,”

Appellants spend a large portion of their brief going through several of the “no

evidence” examples the FEC offered, and why all of this “no evidence” supposedly

should be discounted. (App. Reply at 6-14.) In truth, just as in Colorado II, the

FEC’s record demonstrates the requisite “‘serious threat of abuse.’” McCutcheon,

572 U.S. at 217-19 (citing Colorado II, 533 U.S. at 457); Wagner v. Fed. Election

Comm’n, 793 F.3d 1, 14 (D.C. Cir. 2015) (en banc).

Appellants argue, in conclusory fashion, that the FEC’s examples do not

“involv[e] coordinated expenditures being used as part of a quid pro quo” (App.

Reply at 7-8), and “do not involve quid pro quos” (id. at 8). This is incorrect.

Party donors requesting tax legislation exceeds mere access and influence; it is

exactly the concern that Congress perceived, and the Supreme Court has endorsed,

namely specific legislative action as a condition of contributing — “‘dollars for

political favors.’” McCutcheon, 572 U.S. at 192 (citing FEC v. NCPAC, 470 U.S.

480, 497 (1985)). That Samuel Bankman-Fried, or any donor engaging in a quid

pro quo, is not charged with criminal bribery is immaterial — restrictions on

contributions and coordinated expenditures have long been permissible

notwithstanding concurrent “prohibitions on bribery . . . [that] address only the

‘most blatant and specific’ attempts at corruption.” Colorado II, 533 U.S. at 463 n.

26 (citing Buckley, 424 U.S. at 28). The scope of actual and apparent quid pro quo

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needed to sustain campaign finance limits is not coextensive with whether a bribe

can be proven beyond a reasonable doubt. See Buckley, 424 U.S. at 27-28; Shrink

Missouri, 528 U.S. at 388-89.

Appellants intimate that the FEC’s state examples from Connecticut, New

York, Louisiana, Massachusetts, and Wisconsin “do not involve quid pro quos”

but violate other campaign finance laws. (App. Reply at 8.) These are not

mutually exclusive: quid pro quos, depending on the particulars of a given

arrangement, could well violate a number of campaign finance provisions.

Further, Appellants fail to articulate why these are not quid pro quo scenarios,

when the examples plainly illustrate how sums of money may be provided to

political parties from donors and used as leverage to induce action from

officeholders. (See FEC Br. at 42-43.) Appellants argue in a similar vein that the

Connecticut, New York, Louisiana, and Wisconsin matters did not lead to

prosecution or enforcement actions. (App. Reply at 10.) But whether a

prosecution or enforcement action is brought is not a prerequisite for whether an

instance prompts concerns of actual or apparent corruption. At a minimum, such

examples show how the challenged limits support Congress’s goal of preventing

corruption and its appearance.

Appellants also take issue with the FEC’s sources that “have not been tested

through discovery here.” (Id. at 8-10.) Their claim that the District Court

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“reject[ed]” the FEC’s evidence of corruption in making its Findings of Fact (id. at

9) is wrong. The Court made clear these legislative facts — concerning actors

outside the present litigation — were to be reserved for this en banc Court to

review in the first instance, and thus, expressly limited its findings to adjudicative

facts pertaining only to the parties. (FEC Br. at 19-21 (citing Opinion & Order,

R.49, at 29-35, PageID##5482-88).) That Appellants opposed discovery entirely

in the District Court, (see Pls.’ Reply in Supp. of Mot. to Certify, R.27,

PageID##333-40), but now cast doubt on these sources by maintaining they needed

more discovery to test their propriety is as audacious as it is contradictory. 

Appellants’ remaining point regarding an alleged lack of conclusiveness of

the Tsunis, Tamraz, and Chvala scandals (App. Reply at 9-10), only further

supports the need for coordinated party expenditure limits. There regularly exists

the “practical difficulty of identifying and directly combating circumvention under

actual political conditions,” which greenlights quid pro quo arrangements.

Colorado II, 533 U.S. at 462. What the Commission’s examples show is that when

“contributions g[o] into a general party treasury, and candidate-fundraisers are

rewarded with something less obvious than dollar-for-dollar pass-throughs

(distributed through contributions and party spending),” risks of circumventing

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4

Case: 24-3051 Document: 47 Filed: 05/24/2024 Page: 25 

base limits arise, but are “obviously very hard to trace.” Id.

4

 That continuing

finding — which Appellants do not counter — only bolsters Colorado II’s decision

sustaining the challenged limits recognizing the difficulty of enforcement.

Even though the FEC has illustrated the corruptive risk through numerous

examples, Appellants also fail to acknowledge that the challenged limits

themselves have deterred many corruptive examples that could have been cited,

had the limits not been in effect. It is one thing to object to the “failure to adduce

empirical data that can readily be obtained,” but “something else to insist upon

obtaining the unobtainable.” F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502,

519 (2009). Because the coordinated expenditure limit has been in place for nearly

50 years, “no data can be marshaled to capture perfectly the counterfactual world

in which [such] limits do not exist.” McCutcheon, 572 U.S. at 219. 

Appellants take issue with FEC’s observation of the Supreme Court’s

finding that parties being “inextricably intertwined with federal officeholders and

candidates,” McConnell, 540 U.S. at 155 (quoting 148 Cong. Rec. H409 (Feb. 13,

2002)), can heighten the corruptive potential of coordinated party expenditures.

(App. Reply at 10-11.) But their rejoinder that this unity of interest makes

coordinated party expenditure limits “nonsensical” (id. at 10), reflects a distorted

view. Appellants themselves argue that coordinated spending is “more efficient

and effective.” (First Br. of Pl.-Appellants at 24.) This is because candidate input

or control informs how they should spend funds to further their unified interests of

winning elections and attaining governing majorities. (See FEC Br. at 36-39.) In

this sense, exploring parties’ “structures and objectives” only crystalizes how

donors could contribute to party committees, unbound by coordinated spending

limits, to pursue the same end-in-mind of obtaining favorable official action as

through direct contributions to candidates exceeding base limits. (Id.) The FEC’s

evidence illustrates this reality.

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Appellants cite Cruz for the proposition that the government must point to

“record evidence” to justify the limits. 596 U.S. at 307. But that partial quote

actually comes from Colorado I, in the context of explaining that the government

there “did not point to any record evidence or legislative findings suggesting any

special corruption problem in respect to independent party expenditures.” 518

U.S. at 618 (emphasis added) (explaining the need to show a distinctly high or

“special” fear of corruption in that context because Buckley had previously

determined other limits on independent spending were unjustified). Knowing well

its decision only a few years prior that arose out of the same litigation, the

Colorado II Court found, in stark contrast, that there was “substantial evidence” of

corruption through circumvention that justified limits on coordinated party

expenditures. 533 U.S. at 457. Appellants’ reliance on Cruz is therefore

misplaced to the extent it suggests that the Commission must identify “evidence”

of a corruption problem beyond what the Court recognized in Colorado II.

That the limits have been operative for nearly the past half-century hinders

amassing “record evidence” of the exact strain of corruption at issue —

particularly at the federal level — precisely because the limits may well work — a

possibility that Appellants do not entertain. As this Court has acknowledged,

however, it is unnecessary to “require [the state] to ‘experience the very problem it

fears before taking appropriate prophylactic measures.’” Schickel v. Dilger, 925

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F.3d 858, 871 (6th Cir. 2019) (citing Ognibene v. Parkes, 671 F.3d 174, 188 (2d

Cir. 2011)); see id. at 870 (“A state need not produce evidence of actual instances

of corruption.”) (citing Ognibene, supra, at 183 (“It is not necessary to produce

evidence of actual corruption to demonstrate the sufficiently important interest in

preventing the appearance of corruption.”)); see also Lair v. Motl, 873 F.3d 1170,

1180 (9th Cir. 2017) (“[A state] need not show any completed quid pro quo

transactions to satisfy its burden.”).

Accordingly, the Court should reject Appellants’ insistence that whatever

quantum of evidence the FEC offers, more is needed, especially when “there is no

recent experience with unlimited coordinated spending” because “the

Government’s contentions” have already been found to be “ultimately borne out by

evidence.” Colorado II, 533 U.S. at 433, 447. Apart from aiming to shift the

burden to the FEC to re-validate what the Supreme Court already found,

Appellants, who challenge those determinations, highlight no evidence of changed

circumstances rendering Colorado II’s corruption findings now unpersuasive.

B. The Coordinated Party Expenditure Limits are Closely Drawn

Appellants insist the challenged limits are unconstitutional by offering a

policy-laden critique that Congress could have, and should have, regulated more.

But in addressing the risk of corruption and its appearance, Congress is not

required to comprehensively address all areas of party spending and can legislate

22
 

 

 

 

 

 

 

 Appellants argue that the limits are underinclusive (App. Reply at 14-18),

yet “the First Amendment imposes no freestanding underinclusiveness limitation.” 

See Williams-Yulee v. Fla. Bar, 575 U.S. 433, 449 (2015) (citing R.A.V. v. City of

St. Paul, 505 U.S. 377 (1992)); see also FEC v. Nat’l Right to Work Comm., 459

U.S. 197, 209 (1982) (the “careful legislative adjustment of the federal electoral

laws, in a ‘cautious advance, step by step,’ . . . warrants considerable deference”

(internal citation omitted)). Congress need not address all aspects of party

spending and can act incrementally. Williams-Yulee, 575 U.S. at 449

(“policymakers may focus on their most pressing concerns”). Thus, the Supreme

Court has upheld legislation that could have reached further into an area a

legislature or Congress sought to address, but instead left a portion of their stated

interest unregulated or regulated differently. Id; see also Libertarian Nat’l Comm.

v. FEC, 924 F.3d 533, 550 (D.C. Cir. 2019) (en banc) (upholding contribution

Case: 24-3051 Document: 47 Filed: 05/24/2024 Page: 28 

incrementally over time. (FEC Br. 44-47 (explaining scope of coordinated party

expenditure limits and party coordinated communications).) The fit between the

government interest and the means must be reasonable and proportional, not

necessarily perfect. McCutcheon, 572 U.S. at 218. The FEC has shown

Appellants’ claim of underinclusiveness fails to account for Congress’s reasonably

drawn distinctions between different types of party spending. (FEC Br. at 47 n.6;

see also CLC & CREW Br. at 17-20.)

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Case: 24-3051 Document: 47 Filed: 05/24/2024 Page: 29 

limits for special purpose accounts); Blount v. SEC, 61 F.3d 938, 946 (D.C. Cir.

1995) (rejecting challenge to limitations on contributions by municipal security

professionals, noting that “a regulation is not fatally underinclusive simply because

an alternative regulation, which would restrict more speech . . . could be more

effective”); Wagner, 793 F.3d at 32 (concluding that contractor contribution ban

was not “fatally underinclusive”).

In Williams-Yulee, judicial candidates were prohibited from personally

soliciting contributions, but allowed to set up committees that solicited

contributions for their campaign. The Court upheld the judicial conduct rule

because it sought to insulate candidates from the solicitation and receipt of funds

while leaving open alternative means for candidates to raise resources necessary to

run their campaigns. As in this case, Congress addressed the most pressing aspect

of a problem while leaving other areas less regulated. Compare supra pp. 20-26

(showing risk of corruption or its appearance), with Libertarian Nat’l Comm., 924

F.3d at 550 (finding special purpose accounts “equally benign” and greater risk of

corruption from contributions used to benefit candidates directly).

Appellants err in arguing that the coordinated party spending provisions

improperly limit spending on advertising while not reaching special purpose

accounts (e.g., presidential nominating conventions, building accounts, or legal

funds), and get-out-the-vote and voter registration efforts. (App. Reply at 14-15

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Case: 24-3051 Document: 47 Filed: 05/24/2024 Page: 30 

(quoting Brown v. Ent. Merchs. Ass’n, 564 U.S. 786, 802 (2011).) In Brown, a

non-FECA case, a California law attempted to restrict video game sales to minors

but not other media that contained similar violent content, like Saturday morning

cartoons. Id. at 801-02. Here, in contrast, Congress made a reasonable assessment

about whether non-analogous forms of party spending entail a comparable risk of

corrupting candidates. (See FEC Br. 47 n.6). The Supreme Court has agreed

certain forms of party spending pose a sufficiently distinct corruption danger. (Id.

(citing McConnell, 540 U.S. at 13, 170).) Congress’s difference in treatment

reflects an intuitive judgment that coordinated party expenditures — directly

supporting candidates advocating to win elections — entail a greater danger to

corrupt than other party spending that is more attenuated from that goal. See

Buckley, 424 U.S. at 105 (“[W]e are guided by the familiar principles that a statute

is not invalid under the Constitution because it might have gone farther than it did .

. . and that reform may take one step at a time, addressing itself to the phase of the

problem which seems most acute to the legislative mind.”) (internal quotation

marks and citations omitted); McConnell, 540 U.S. at 158 (rejecting

underinclusiveness argument and noting that “we respect Congress’s decision to

proceed in incremental steps in the area of campaign finance regulation”).

Appellants’ disagreement with that legislative decision is merely policy preference

and has no application here.

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Case: 24-3051 Document: 47 Filed: 05/24/2024 Page: 31 

Next, Appellants argue that FECA could employ alternative means to

accomplish its anticorruption interest. (App. Reply 18-20.) These policy

disagreements miss the mark, and importantly, do not signal constitutional

infirmity of Congress’s well-tailored arrangement. Appellants mistakenly suggest

lower party base limits, earmarking prohibition, and disclosure requirements are

“‘alternatives available’” to prevent circumvention “‘while avoiding ‘unnecessary

abridgment’ of First Amendment rights.’” (App. Reply at 18 (citing McCutcheon,

572 U.S. at 218, 221).) But these other measures do not prevent the sort of

corruption with which Congress was concerned arose from unlimited coordinated

spending.

First, Congress instituted dual measures of comparatively high party base

limits with coordinated party expenditure limits, rather than lowering party base

limits to $3,300 to prevent the risk of pass-through corruption. (FEC Br. at 54-55.)

Appellants suggest they would prefer a “reduction in quantity of contributions for a

boost in quality of expenditures” (App. Reply at 19), but meanwhile stress existing

fundraising disparities with Super PACs that lowering contribution limits would

only exacerbate. The challenged limits instead evidence that Congress crafted a

more closely tailored approach, allowing parties to raise and use substantial funds

in various ways beyond coordinated spending (including general party-building

activity, get-out-the-vote and party registration activities, dissemination of certain

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campaign materials, nominating conventions, party headquarters, legal

proceedings, and, of course, highly-valued independent spending in support of

candidates), rather than a heavy-handed cap on what party committees may raise.

As the Colorado II Court put it, “Congress is entitled to its choice . . . between

limiting contributions and limiting expenditures whose special value as

expenditures is also the source of their power to corrupt.” 533 U.S. at 464-65.

Second, the concern with donor-candidate quid pro quos from coordinated

party expenditures is precisely that they entail “unearmarked contributions to . . .

the candidate’s political party.” Buckley, 424 U.S. at 38. The danger is this:

donors contribute to party committees, parties allocate donor contributions to

candidate-controlled coordinated spending, and then candidates-turnedofficeholders carry out the wishes of the donor. (FEC Br. at 33 (diagramming

these steps).) Parties may well be unwitting in their use as an “intermediary or

conduit” and unable to “report the original source and the intended recipient of

such contribution.” 52 U.S.C. § 30116(a)(8). Even the “tight[est]” antiearmarking statute or implementing regulation (App. Reply at 20), would not

capture this unapparent arrangement. And, again, claiming that some

circumvention was at one time “legal” (App. Reply at 12-13, 20), only reinforces

the Commission’s argument that lawful latent mechanisms exist to allocate donors’

contributions to coordinated spending with particular candidates, “induc[ing] . . .

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Case: 24-3051 Document: 47 Filed: 05/24/2024 Page: 33 

more subtle circumvention” from “‘understandings’ regarding which donors give

what amounts to the party, which candidates are to receive what funds from the

party, and what interests particular donors are seeking to promote,” all of which

facilitates opportunities for donor-candidate exchanges. Colorado II, 533 U.S. at

460 n. 23, 462.

Third, “disclosure of contributions to and coordinated expenditures by

parties” (App. Reply at 19), is undoubtedly insufficient to prevent or deter the

avenue for quid pro quo at issue. Party committees only disclose that they received

contributions from certain donors and made certain coordinated expenditure with

candidates; disclosure would not illuminate how specific coordinated expenditures

could have been financed by a particular donor to facilitate the sort of possible

quid pro quo of which the Commission warns. Thus, disclosure does not offer “a

particularly effective means of arming the voting public with information” that is

relevant to revealing these corrupt exchanges. McCutcheon, 572 U.S. at 224.

CONCLUSION

For the foregoing reasons, the certified question should be decided in favor

of the Commission.

Respectfully submitted,

Lisa J. Stevenson /s/ Shaina Ward

Acting General Counsel Shaina Ward

lstevenson@fec.gov sward@fec.gov

28
Charles Kitcher

Associate General Counsel

ckitcher@fec.gov

 

 

 

Case: 24-3051 Document: 47 Filed: 05/24/2024 Page: 34 

Jason Hamilton 

Assistant General Counsel

jhamilton@fec.gov

May 24, 2024

/s/ Blake L. Weiman

Blake L. Weiman

bweiman@fec.gov

Attorneys

FEDERAL ELECTION

COMMISSION

1050 First Street NE

Washington, DC 20463

(202) 694-1650

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Case: 24-3051 Document: 47 Filed: 05/24/2024 Page: 35 

CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMIT,

TYPEFACE REQUIREMENTS, AND TYPE-STYLE REQUIREMENTS

I hereby certify, on this 24th day of May, that:

1. This brief complies with the word limit of Fed. R. App. P. 32(a)(7) because,

excluding the parts of the brief exempted by Fed. R. App. 32(f) and Sixth

Circuit Rule 32(b)(1), this brief contains 6419 words.

2. This brief complies with the typeface requirements of Fed. R. App. P.

32(a)(5) and the type-style requirements of Fed. R. App. 32(a)(6) because

this brief has been prepared in a proportionally spaced typeface using

Microsoft Word 2013 in a 14-point Times New Roman font.

/s/ Shaina Ward

Shaina Ward
 

 

 

 

 

Case: 24-3051 Document: 47 Filed: 05/24/2024 Page: 36 

CERTIFICATE OF SERVICE

I hereby certify that on this 24th day of May, 2024, I electronically filed the

foregoing document with the Clerk of the United States Court of Appeals for the

Sixth Circuit by using the Court’s CM/ECF system. All participants are registered

CM/ECF users and will be served by the appellate CM/ECF system.

/s/ Shaina Ward

Shaina Ward