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FEDERAL ELECTION COMMISSION v. COLORADO

REPUBLICAN FEDERAL CAMPAIGN

COMMITTEE

certiorari to the united states court of appeals for

the tenth circuit

No. 00–191. Argued February 28, 2001—Decided June 25, 2001

In Buckley v. Valeo, 424 U. S. 1, 12–59, this Court held that the limitations on political campaign contributions in the Federal Election Campaign Act of 1971 were generally constitutional, but that the Act’s

limitations on election expenditures infringed political expression in

violation of the First Amendment. Later cases have respected this

line between contributing and spending. The distinction’s simplicity is

qualified, however, by the Act’s provision for a functional, not formal,

definition of “contribution,” which includes “expenditures made by any

person in cooperation, consultation, or concert, with . . . a candidate,”

2 U. S. C. § 441a(a)(7)(B)(i). Thus, expenditures coordinated with a candidate are contributions under the Act. The Federal Election Commission (FEC) originally took the position that any expenditure by a

political party in connection with a federal election was presumed to

be coordinated with the party’s candidate. See, e. g., Federal Election

Comm’n v. Democratic Senatorial Campaign Comm., 454 U. S. 27, 28–

29, n. 1. The FEC thus assumed that all expenditure limits imposed

on political parties were, in essence, contribution limits and therefore

constitutional. Such limits include § 441a(d)(3), which imposes spending limits on national and state political parties with respect to United

States Senate elections. In Colorado Republican Federal Campaign

Comm. v. Federal Election Comm’n, 518 U. S. 604 (Colorado I), the

spending limits in § 441a(d)(3) (referred to as the Party Expenditure

Provision), were held unconstitutional as applied to the independent

expenditures of the Colorado Republican Federal Campaign Committee

(Party) in connection with a senatorial campaign. The principal opinion

ruled the payments “independent,” rather than coordinated, expenditures under this Court’s cases because the Party spent the money before

selecting its own senatorial candidate and without any arrangement

with potential nominees. Id., at 613–614. The principal opinion remanded the Party’s broader claim that all limits on a party’s congressional campaign expenditures are facially unconstitutional and thus un-
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enforceable even as to spending coordinated with a candidate. Id., at

623–626. On remand, the District Court held for the Party on that

claim, and a divided Tenth Circuit panel affirmed.

Held: Because a party’s coordinated expenditures, unlike expenditures

truly independent, may be restricted to minimize circumvention of

the Act’s contribution limits, the Party’s facial challenge is rejected.

Pp. 440–465.

(a) Political expenditure limits deserve closer scrutiny than contribution restrictions, e. g., Buckley, 424 U. S., at 14–23, because expenditure restraints generally curb more expressive and associational activity

than contribution limits, e. g., id., at 19–23, and because unlimited contributions are more clearly linked to political corruption than other kinds

of unlimited political spending, at least where the spending is not coordinated with a candidate or his campaign, e. g., id., at 47. Although the

First Amendment line is easy to draw when it falls between independent expenditures by individuals or political action committees (PACs)

without any candidate’s approval and contributions in the form of cash

gifts to candidates, see, e. g., id., at 19–23, facts speak less clearly once

the independence of the spending cannot be taken for granted. Congress’s functional treatment of coordinated expenditures by individuals

and nonparty groups like contributions prevents attempts to circumvent the Act through coordinated expenditures amounting to disguised

contributions. Id., at 47. Buckley, in fact, enhanced the significance

of this functional treatment by striking down independent expenditure limits on First Amendment grounds while upholding limitations

on contributions (by individuals and nonparty groups), as defined to include coordinated expenditures. Id., at 23–59. Colorado I addressed

the FEC’s effort to stretch the functional treatment one step further.

Because Buckley had treated some coordinated expenditures like contributions and upheld their limitation, the FEC’s argument went, the

Party Expenditure Provision should stand as applied to all party election spending, see, e. g., 518 U. S., at 619–623. Holding otherwise, the

principal opinion found that, because “independent” party expenditures

are no more likely to serve corruption than independent expenditures

by anyone else, there was no justification for subjecting party election

spending across the board to the kinds of limits previously invalidated

when applied to individuals and nonparty groups. See id., at 616. But

that still left the question whether the First Amendment allows coordinated election expenditures by parties to be treated functionally as

contributions, the way coordinated expenditures by other entities are

treated. The issue in this case is, accordingly, whether a party is in a

different position from other political speakers, giving it a claim to de-
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mand a higher standard of scrutiny before its coordinated spending can

be limited. Pp. 440–445.

(b) The Party’s argument that its coordinated spending, like its independent spending, should be left free from restriction under the Buckley

line of cases boils down to this: because a party’s most important speech

is aimed at electing candidates and is itself expressed through those

candidates, any limit on party support for a candidate imposes a unique

First Amendment burden. Limitation of any party expenditure coordinated with a candidate, the Party contends, is therefore a serious, rather

than incidental, imposition on the party’s speech and associative purpose, which justifies a stricter level of scrutiny than has been applied

to analogous limits on individuals and nonparty groups. But whatever

level of scrutiny is applied to such a limit, the Party argues, the burden

on a party reflects a fatal mismatch between the effects of limiting coordinated party expenditures and the prevention of corruption or its appearance. In contrast, the Government’s argument for characterizing

coordinated spending like contributions goes back to Buckley, which,

in effect, subjected limits on coordinated expenditures by individuals

and nonparty groups to the same scrutiny it applied to limits on their

cash contributions. The standard of scrutiny requires the limit to be

closely drawn to match a sufficiently important interest, though the

limit’s dollar amount need not be fine tuned. See, e. g., Buckley, supra,

at 25, 30. The Government develops this rationale a step further here,

arguing that a party’s coordinated spending should be limited not only

because it is like a party contribution, but because giving a party the

right to make unlimited coordinated expenditures would induce those

wishing to support a nominee to contribute to the party in order to

finance coordinated spending for that candidate, thereby increasing

circumvention and bypassing the limits Buckley upheld. Pp. 445–447.

(c) Although each of the competing positions is plausible at first blush,

evaluation of the arguments prompts rejection of the Party’s claim

to suffer a burden unique in any way that should make a categorical

difference under the First Amendment. And the Government’s contentions are ultimately borne out by evidence, entitling it to prevail

in its characterization of party coordinated spending as the functional

equivalent of contributions. Pp. 447–460.

(1) The Party’s argument that unrestricted coordinated spending

is essential to a party’s nature because of its unique relationship with

candidates has been rendered implausible by nearly 30 years’ history

under the Act. Since 1974, a party’s coordinated spending in a given

race has been limited by the provision challenged here (or its predecessor). It was not until the 1996 Colorado I decision that any spending was allowed above that amount, and since then only independent
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spending has been unlimited. Thus, the Party’s claim that coordinated

spending beyond the Act’s limit is essential to its very function as a

party amounts implicitly to saying that for almost three decades political parties have not been quite functional or have been functioning

in systematic violation of the law. The Court cannot accept either implication. Pp. 449–450.

(2) There is a different weakness in the seemingly unexceptionable premise that parties are organized for the purpose of electing candidates, so that imposing on the way parties serve that function is

uniquely burdensome. The fault here is a refusal to see how the power

of money actually works in the political structure. Looking directly at

a party’s function in getting and spending money, it would ignore reality

to think that the party role is adequately described by speaking generally of electing particular candidates. Parties are necessarily the

instruments of some contributors, such as PACs, whose object is not

to support the party’s message or to elect party candidates, but rather

to support a specific candidate for the sake of a position on one, narrow

issue, or even to support any candidate who will be obliged to contributors. Parties thus perform functions more complex than simply electing their candidates: they act as agents for spending on behalf of those

who seek to produce obligated officeholders. It is this party role, which

functionally unites parties with other self-interested political actors,

that the Party Expenditure Provision targets. Pp. 450–452.

(3) The Court agrees insofar as the Party suggests that its strong

working relationship with candidates and its unique ability to speak

in coordination with them should be taken into account in the First

Amendment analysis. It is the accepted understanding that a party

combines its members’ power to speak by aggregating their contributions and broadcasting its messages more widely than its individual

contributors generally could afford to do, and it marshals this power

with greater sophistication than individuals generally could, using such

mechanisms as speech coordinated with a candidate. Cf. Colorado I,

518 U. S., at 637. It does not, however, follow from a party’s efficiency

in getting large sums and spending intelligently that limits on a party’s

coordinated spending should be scrutinized under an unusually high

standard. In fact, any argument from sophistication and power would

cut both ways. On the one hand, one can seek the benefit of stricter

scrutiny of a law capping party coordinated spending by emphasizing

the heavy burden imposed by limiting the most effective mechanism

of sophisticated spending. And yet it is exactly this efficiency culminating in coordinated spending that (on the Government’s view) places

a party in a position to be used to circumvent contribution limits that

apply to individuals and PACs, and thereby to exacerbate the threat of
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corruption and apparent corruption that those contribution limits are

aimed at reducing. Pp. 453–454.

(4) The preceding question assumes that parties enjoy a power and

experience that sets them apart from other political spenders. But in

fact the assumption is too crude. Like a party, rich individual donors,

media executives, and PACs have the means to speak loudly and the

capacity to work in tandem with a candidate. Yet all of them are subject to the coordinated spending limits upheld in Buckley, 424 U. S., at

46–47. A party is also like some of these political actors in its right

under Colorado I to spend money in support of a candidate without

legal limit so long as it spends independently. A party is not, therefore, in a unique position, but is in the same position as some individuals

and PACs. Pp. 454–455.

(5) Because the Party’s arguments do not pan out, the Court applies to a party’s coordinated spending limitation the same scrutiny it

has applied to the other political actors, that is, scrutiny appropriate

for a contribution limit, enquiring whether the restriction is “closely

drawn” to match the “sufficiently important” government interest in

combating political corruption. E. g., Nixon v. Shrink Missouri Government PAC, 528 U. S. 377, 387–388. Pp. 455–456.

(6) Under that standard, adequate evidentiary grounds exist to sustain the coordinated spending limit for parties. Substantial evidence

demonstrates how candidates, donors, and parties test the current law’s

limits, and it shows beyond serious doubt how those contribution limits

would be eroded if inducement to circumvent them were enhanced

by declaring parties’ coordinated spending wide open. Under the Act,

a donor is limited to $2,000 in contributions to one candidate in a given

election cycle. The same donor may give as much as another $20,000

each year to a national party committee supporting the candidate. The

evidence shows that what a realist would expect to occur has occurred.

Donors give to the party with the tacit understanding that the favored

candidate will benefit. Testimony shows that, although the understanding between donor and party may involve no definite commitment

and may be tacit on the donor’s part, the frequency of the practice and

the volume of money involved has required parties to adopt tallying

procedures to connect donors to candidates. If suddenly every dollar

of spending could be coordinated with the candidate, the inducement to

circumvent would almost certainly intensify. Pp. 457–460.

(d) The Party’s attempts to minimize the threat of corruption by circumvention are unavailing. Its claim that most contributions to parties

are small, with negligible corrupting momentum to be carried through

the party conduit, is unpersuasive given the evidence that, even under

present law, substantial donations turn the parties into matchmakers
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whose special meetings and receptions give donors the chance to get

their points across to the candidates. The fact that incumbent candidates give more excess campaign funds to parties than parties spend on

coordinated expenditures does not defuse concern over circumvention;

if party contributions were not used as a funnel from donors to candidates, there would be no reason for the tallying system described by

the witnesses. Finally, the Court rejects the Party’s claim that, even

if there is a circumvention threat, the First Amendment demands a response better tailored to that threat than a limitation on coordinated

spending. First, the Party’s suggestion that better crafted safeguards

are already in place in § 441a(a)(8)—which provides that contributions

that are earmarked or otherwise directed through an intermediary to

a candidate are treated as contributions to the candidate—ignores the

practical difficulty of identifying and directly combating circumvention

when contributions go into a general party treasury and candidatefundraisers are rewarded with something less obvious than dollar-fordollar pass-throughs. Second, although the Party’s call for replacing

limits on parties’ coordinated expenditures with limits on contributions

to parties is based in part on reasoning in Buckley, supra, at 44, and

Colorado I, supra, at 617, those cases ultimately turned on the understanding that the expenditures at issue were independent and therefore

functionally true expenditures, whereas, here, just the opposite is true.

Pp. 461–465.

213 F. 3d 1221, reversed.

Souter, J., delivered the opinion of the Court, in which Stevens,

O’Connor, Ginsburg, and Breyer, JJ., joined. Thomas, J., filed a dissenting opinion, in which Scalia and Kennedy, JJ., joined, and in which

Rehnquist, C. J., joined as to Part II, post, p. 465.

Acting Solicitor General Underwood argued the cause for

petitioner. With her on the briefs were former Solicitor

General Waxman, Malcolm L. Stewart, Lawrence M. Noble,

Richard B. Bader, and David Kolker.

Jan Witold Baran argued the cause for respondent. With

him on the brief were Thomas W. Kirby and Carol A.

Laham.*

*Briefs of amici curiae urging reversal were filed for the State of Missouri et al. by Jeremiah W. (Jay) Nixon, Attorney General of Missouri,

and James R. Layton, State Solicitor, joined by the Attorneys General for

their respective States as follows: Ken Salazar of Colorado, Earl I. Anzai
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Opinion of the Court

Justice Souter delivered the opinion of the Court.

In Colorado Republican Federal Campaign Comm. v. Federal Election Comm’n, 518 U. S. 604 (1996) (Colorado I), we

held that spending limits set by the Federal Election Campaign Act were unconstitutional as applied to the Colorado

Republican Party’s independent expenditures in connection

with a senatorial campaign. We remanded for consideration

of the party’s claim that all limits on expenditures by a political party in connection with congressional campaigns are

facially unconstitutional and thus unenforceable even as to

spending coordinated with a candidate. Today we reject

that facial challenge to the limits on parties’ coordinated

expenditures.

I

We first examined the Federal Election Campaign Act of

1971 in Buckley v. Valeo, 424 U. S. 1 (1976) (per curiam),

where we held that the Act’s limitations on contributions to

a candidate’s election campaign were generally constitutional, but that limitations on election expenditures were

not. Id., at 12–59. Later cases have respected this line

between contributing and spending. See, e. g., Nixon v.

Shrink Missouri Government PAC, 528 U. S. 377, 386–388

(2000); Colorado I, supra, at 610, 614–615; Federal Election

of Hawaii, Joseph P. Mazurek of Montana, Eliot Spitzer of New York,

W. A. Drew Edmondson of Oklahoma, and William H. Sorrell of Vermont;

for Common Cause et al. by Roger M. Witten, Daniel H. Squire, Donald

J. Simon, and Fred Wertheimer; for the National Voting Rights Institute

by David A. Wilson, John C. Bonifaz, Brenda Wright, and Gregory G.

Luke; for Senator John F. Reed et al. by Donald B. Verrilli, Jr., and

Deanne E. Maynard; and for Paul Allen Beck et al. by Burt Neuborne.

Briefs of amici curiae urging affirmance were filed for the American

Civil Liberties Union et al. by Mark J. Lopez, Steven R. Shapiro, and Joel

M. Gora; for the California Republican Party by Charles H. Bell, Jr.;

for the Missouri Republican Party by D. Bruce La Pierre and W. Bevis

Schock; and for the National Republican Congressional Committee by

Benjamin L. Ginsberg.
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Comm’n v. Massachusetts Citizens for Life, Inc., 479 U. S.

238, 259–260 (1986).

The simplicity of the distinction is qualified, however, by

the Act’s provision for a functional, not formal, definition of

“contribution,” which includes “expenditures made by any

person in cooperation, consultation, or concert, with, or at

the request or suggestion of, a candidate, his authorized

political committees, or their agents,” 2 U. S. C. § 441a(a)

(7)(B)(i).1 Expenditures coordinated with a candidate, that

is, are contributions under the Act.

The Federal Election Commission (FEC or Commission)

originally took the position that any expenditure by a political party in connection with a particular election for federal

office was presumed to be coordinated with the party’s candidate. See Federal Election Comm’n v. Democratic Senatorial Campaign Comm., 454 U. S. 27, 28–29, n. 1 (1981); Brief

for Petitioner 6–7. The Commission thus operated on the

assumption that all expenditure limits imposed on political

parties were, in essence, contribution limits and therefore

constitutional. Brief for Respondent in Colorado I, O. T.

1995, No. 95–489, pp. 28–30. Such limits include 2 U. S. C.

§ 441a(d)(3), which provides that in elections for the United

States Senate, each national or state party committee 2 is

1 “Contribution” is otherwise defined as “any gift, subscription, loan, advance, or deposit of money or anything of value made by any person for

the purpose of influencing any election for Federal office”; or “the payment

by any person of compensation for the personal services of another person

which are rendered to a political committee without charge for any purpose.” 2 U. S. C. § 431(8).

The Act defines “expenditure” 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.”

§ 431(9)(A)(i). A “written contract, promise, or agreement to make an

expenditure” also counts as an expenditure. § 431(9)(A)(ii). 2 A political party’s “national committee” is the “organization which, by

virtue of the bylaws of a political party, is responsible for the day-to-day

operation of such political party at the national level, as determined by
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Opinion of the Court

limited to spending the greater of $20,000 (adjusted for

inflation, § 441a(c)) or two cents multiplied by the voting

age population of the State in which the election is held,

§ 441a(d)(3)(A).3

Colorado I was an as-applied challenge to § 441a(d)(3)

(which we spoke of as the Party Expenditure Provision), occasioned by the Commission’s enforcement action against the

Colorado Republican Federal Campaign Committee (Party)

for exceeding the campaign spending limit through its

payments for radio advertisements attacking Democratic

Congressman and senatorial candidate Timothy Wirth. 518

U. S., at 612–613. The Party defended in part with the

claim that the party expenditure limitations violated the

First Amendment, and the principal opinion in Colorado I

agreed that the limitations were unconstitutional as applied

to the advertising expenditures at issue. Unlike the Commission, the Members of the Court who joined the principal

opinion thought the payments were “independent expenditures” as that term had been used in our prior cases, owing

to the facts that the Party spent the money before selecting its own senatorial candidate and without any arrangement with potential nominees. Id., at 613–614 (opinion of

Breyer, J.).

The Party’s broader claim remained: that although prior

decisions of this Court had upheld the constitutionality of

limits on coordinated expenditures by political speakers

the [Federal Election] Commission.” § 431(14). A “state committee” fills

the same role at the state level. § 431(15). 3 The same limits apply to campaigns for House of Representatives from

States entitled to only one Representative. § 441a(d)(3)(A). For other

States, the limit on party expenditures in connection with House campaigns is $10,000 preadjustment. § 441a(d)(3)(B). As adjusted for inflation, the 2000 Senate limits ranged from $67,560 to $1,636,438; House limits

ranged from $33,780 to $67,560. 26 FEC Record 14–15 (Mar. 2000).

The FEC reads the Act to permit parties to make campaign contributions within the otherwise-applicable contribution limits, in addition to the

expenditures permitted by § 441a(d). See n. 16, infra.
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other than parties, the congressional campaign expenditure

limitations on parties themselves are facially unconstitutional, and so are incapable of reaching party spending even

when coordinated with a candidate. Id., at 623–626.4 We

remanded that facial challenge, which had not been fully

briefed or considered below. Ibid. On remand the District

Court held for the Party, 41 F. Supp. 2d 1197 (1999), and a

divided panel of the Court of Appeals for the Tenth Circuit

affirmed, 213 F. 3d 1221 (2000).5 We granted certiorari to

resolve the question left open by Colorado I, see 531 U. S.

923 (2000), and we now reverse.

II

Spending for political ends and contributing to political

candidates both fall within the First Amendment’s protection of speech and political association. Buckley, 424 U. S.,

at 14–23. But ever since we first reviewed the 1971 Act, we

have understood that limits on political expenditures deserve

closer scrutiny than restrictions on political contributions.

Ibid.; see also, e. g., Shrink Missouri, 528 U. S., at 386–388;

Colorado I, supra, at 610, 614–615; Massachusetts Citizens

for Life, supra, at 259–260. Restraints on expenditures

generally curb more expressive and associational activity

than limits on contributions do. Shrink Missouri, supra, at

386–388; Colorado I, supra, at 615; Buckley, supra, at 19–23.

A further reason for the distinction is that limits on contribu4 The limits applicable to Presidential campaigns were not at issue in

Colorado I, 518 U. S. 604, 610–611 (1996), and are not at issue here, Brief

for Respondent 49, n. 30. 5 Along with its constitutional claim, the Party argued to the District

Court that the Party Expenditure Provision’s application to independent

expenditures was not severable from the other possible applications of the

provision, a nonconstitutional basis for resolving the case that the Colorado I principal opinion suggested should be explored on remand. Colorado I, supra, at 625–626. The District Court rejected the nonseverability argument, 41 F. Supp. 2d, at 1207, and the Party did not renew it on

appeal, 213 F. 3d, at 1225, n. 3.
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tions are more clearly justified by a link to political corruption than limits on other kinds of unlimited political spending

are (corruption being understood not only as quid pro quo

agreements, but also as undue influence on an officeholder’s

judgment, and the appearance of such influence, Shrink Missouri, supra, at 388–389). At least this is so where the

spending is not coordinated with a candidate or his campaign. Colorado I, supra, at 615; Buckley, 424 U. S., at 47.

In Buckley we said that:

“[u]nlike contributions,...independent expenditures

may well provide little assistance to the candidate’s campaign and indeed may prove counterproductive. The

absence of prearrangement and coordination of an expenditure with the candidate or his agent not only undermines the value of the expenditure to the candidate,

but also alleviates the danger that expenditures will be

given as a quid pro quo for improper commitments from

the candidate.” Ibid.

Given these differences, we have routinely struck down limitations on independent expenditures by candidates, other

individuals, and groups, see Federal Election Comm’n v.

National Conservative Political Action Comm., 470 U. S.

480, 490–501 (1985) (political action committees); Buckley,

supra, at 39–58 (individuals, groups, candidates, and campaigns),6 while repeatedly upholding contribution limits, see

Shrink Missouri, supra (contributions by political action

6 The expenditure limits invalidated in Buckley applied to candidates

and their campaigns, and to “persons.” See 424 U. S., at 39–40, 51, 54, 58.

“Person” was defined as “an individual, partnership, committee, association, corporation, or any other organization or group of persons.” 18

U. S. C. § 591(g) (1970 ed., Supp. IV); see also Buckley, 424 U. S., at 144–

235 (appendix reprinting then-current Act). Although this language is

broad enough to cover political parties, id., at 19, and n. 19, 39, parties

with a candidate on the ballot were covered instead by the special Party

Expenditure Provision, which was not challenged on First Amendment

grounds, id., at 58, n. 66.
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committees); California Medical Assn. v. Federal Election

Comm’n, 453 U. S. 182, 193–199 (1981) (contributions by individuals and associations); Buckley, supra, at 23–36 (contributions by individuals, groups, and political committees).7

The First Amendment line between spending and donating

is easy to draw when it falls between independent expenditures by individuals or political action committees (PACs)

without any candidate’s approval (or wink or nod), and contributions in the form of cash gifts to candidates. See, e. g.,

Shrink Missouri, supra, at 386–388; Buckley, supra, at 19–

23.8 But facts speak less clearly once the independence of

7 The contribution limits at issue in Buckley applied to “persons” (“person” again defined as “an individual, partnership, committee, association,

corporation or any other organization or group of persons,” id., at 23).

Certain groups (referred to under current law as “multicandidate political

committees”) that registered with the FEC and met other qualifications,

including making contributions to five or more candidates for federal office, were subject to a higher limit. Id., at 35.

The current contribution limits appear in 2 U. S. C. § 441a(a). They provide that “persons” (still broadly defined, see § 431(11)) may contribute no

more than $1,000 to a candidate “with respect to any election for Federal

office,” $5,000 to any political committee in any year, and $20,000 to the

national committees of a political party in any year. § 441a(a)(1). Individuals are limited to a yearly contribution total of $25,000. § 441a(a)(3).

“[M]ulticandidate political committees” are limited to a $5,000 contribution

to a candidate “with respect to any election,” $5,000 to any political committee in any year, and $15,000 to the national committees of a political

party in any year. § 441a(a)(2). Unlike the party expenditure limits,

these contribution limits are not adjusted for inflation. 8 The Party does not challenge the constitutionality of limits on cash

contributions from parties to candidates, Brief for Respondent 49, n. 31,

which, on the FEC’s reading of the Act, are imposed on parties by the

generally applicable contribution limits of 2 U. S. C. § 441a(a), see n. 16,

infra. And the Party, unlike Justice Thomas, post, at 465 (dissenting

opinion), does not call for the overruling of Buckley. Nor does the FEC

ask us to revisit Buckley’s general approach to expenditure limits, although some have argued that such limits could be justified in light of

post-Buckley developments in campaign finance, see, e. g., Blasi, Free

Speech and the Widening Gyre of Fundraising, 94 Colum. L. Rev. 1281

(1994); cf. Nixon v. Shrink Missouri Government PAC, 528 U. S. 377, 409
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the spending cannot be taken for granted, and money spent

by an individual or PAC according to an arrangement with a

candidate is therefore harder to classify. As already seen,

Congress drew a functional, not a formal, line between contributions and expenditures when it provided that coordinated expenditures by individuals and nonparty groups

are subject to the Act’s contribution limits, 2 U. S. C.

§ 441a(a)(7)(B)(i); Colorado I, 518 U. S., at 611. In Buckley,

the Court acknowledged Congress’s functional classification,

424 U. S., at 46–47, and n. 53, and observed that treating

coordinated expenditures as contributions “prevent[s] attempts to circumvent the Act through prearranged or coordinated expenditures amounting to disguised contributions,”

id., at 47. Buckley, in fact, enhanced the significance of this

functional treatment by striking down independent expenditure limits on First Amendment grounds while upholding

limitations on contributions (by individuals and nonparty

groups), as defined to include coordinated expenditures, id.,

at 23–59.9

Colorado I addressed the FEC’s effort to stretch the functional treatment of coordinated expenditures further than

the plain application of the statutory definition. As we said,

the FEC argued that parties and candidates are coupled so

closely that all of a party’s expenditures on an election campaign are coordinated with its candidate; because Buckley

had treated some coordinated expenditures like contribu-

(2000) (Kennedy, J., dissenting) (“I would leave open the possibility that

Congress, or a state legislature, might devise a system in which there

are some limits on both expenditures and contributions, thus permitting officeholders to concentrate their time and efforts on official duties

rather than on fundraising”); id., at 405 (Breyer, J., concurring) (“Suppose Buckley denies the political branches sufficient leeway to enact

comprehensive solutions to the problems posed by campaign finance.

If so, like Justice Kennedy, I believe the Constitution would require

us to reconsider Buckley”). 9 As noted, n. 6, supra, the Party Expenditure Provision itself was not

challenged on First Amendment grounds in Buckley, supra, at 58, n. 66.
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tions and upheld their limitation, the argument went, the

Party Expenditure Provision should stand as applied to all

party election spending. See Brief for Respondent in Colorado I, O. T. 1995, No. 95–489, at 28–30; see also Colorado I,

supra, at 619–623. Colorado I held otherwise, however, the

principal opinion’s view being that some party expenditures

could be seen as “independent” for constitutional purposes.

518 U. S., at 614. The principal opinion found no reason to

see these expenditures as more likely to serve or be seen

as instruments of corruption than independent expenditures

by anyone else. So there was no justification for subjecting

party election spending across the board to the kinds of

limits previously invalidated when applied to individuals

and nonparty groups. The principal opinion observed that

“[t]he independent expression of a political party’s views is

‘core’ First Amendment activity no less than is the independent expression of individuals, candidates, or other political

committees.” Id., at 616. Since the FEC did not advance

any other convincing reason for refusing to draw the

independent-coordinated line accepted since Buckley, see

National Conservative Political Action Comm., 470 U. S.,

at 497–498; Buckley, supra, at 46–47, that was the end of the

case so far as it concerned independent spending. Colorado

I, supra, at 617–623.

But that still left the question whether the First Amendment allows coordinated election expenditures by parties to

be treated functionally as contributions, the way coordinated

expenditures by other entities are treated. Colorado I

found no justification for placing parties at a disadvantage

when spending independently; but was there a case for leaving them entirely free to coordinate unlimited spending with

candidates when others could not? The principal opinion in

Colorado I noted that coordinated expenditures “share some

of the constitutionally relevant features of independent expenditures.” 518 U. S., at 624. But it also observed that

“many [party coordinated expenditures] are . . . virtually in-
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distinguishable from simple contributions.” Ibid. Coordinated spending by a party, in other words, covers a spectrum

of activity, as does coordinated spending by other political

actors. The issue in this case is, accordingly, whether a

party is otherwise in a different position from other political

speakers, giving it a claim to demand a generally higher

standard of scrutiny before its coordinated spending can be

limited. The issue is posed by two questions: does limiting

coordinated spending impose a unique burden on parties, and

is there reason to think that coordinated spending by a party

would raise the risk of corruption posed when others spend

in coordination with a candidate? The issue is best viewed

through the positions developed by the Party and the Government in this case.

III

The Party’s argument that its coordinated spending, like

its independent spending, should be left free from restriction

under the Buckley line of cases boils down to this: because

a party’s most important speech is aimed at electing candidates and is itself expressed through those candidates, any

limit on party support for a candidate imposes a unique First

Amendment burden. See Brief for Respondent 26–31. The

point of organizing a party, the argument goes, is to run a

successful candidate who shares the party’s policy goals.

Id., at 26. Therefore, while a campaign contribution is only

one of several ways that individuals and nonparty groups

speak and associate politically, see Shrink Missouri, 528

U. S., at 386–387; Buckley, supra, at 20–22, financial support

of candidates is essential to the nature of political parties as

we know them. And coordination with a candidate is a party’s natural way of operating, not merely an option that can

easily be avoided. Brief for Respondent 26. Limitation of

any party expenditure coordinated with a candidate, the

Party contends, is therefore a serious, rather than incidental,

imposition on the party’s speech and associative purpose, and

that justifies a stricter level of scrutiny than we have applied
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to analogous limits on individuals and nonparty groups. But

whatever level of scrutiny is applied, the Party goes on to

argue, the burden on a party reflects a fatal mismatch between the effects of limiting coordinated party expenditures

and the prevention of corruption or the appearance of it.

Brief for Respondent 20–22, 25–32; see also 213 F. 3d, at

1227.

The Government’s argument for treating coordinated

spending like contributions goes back to Buckley. There,

the rationale for endorsing Congress’s equation of coordinated expenditures and contributions was that the equation

“prevent[s] attempts to circumvent the Act through prearranged or coordinated expenditures amounting to disguised contributions.” 424 U. S., at 47. The idea was that

coordinated expenditures are as useful to the candidate as

cash, and that such “disguised contributions” might be given

“as a quid pro quo for improper commitments from the candidate” (in contrast to independent expenditures, which are

poor sources of leverage for a spender because they might

be duplicative or counterproductive from a candidate’s point

of view). Ibid. In effect, therefore, Buckley subjected limits on coordinated expenditures by individuals and nonparty

groups to the same scrutiny it applied to limits on their cash

contributions. The standard of scrutiny requires the limit

to be “ ‘closely drawn’ to match a ‘sufficiently important interest,’ . . . though the dollar amount of the limit need not be

‘fine tun[ed],’ ” Shrink Missouri, supra, at 387–388 (quoting

Buckley, supra, at 25, 30).

The Government develops this rationale a step further in

applying it here. Coordinated spending by a party should

be limited not only because it is like a party contribution,

but for a further reason. A party’s right to make unlimited

expenditures coordinated with a candidate would induce individual and other nonparty contributors to give to the party

in order to finance coordinated spending for a favored candidate beyond the contribution limits binding on them. The
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Government points out that a degree of circumvention is occurring under present law (which allows unlimited independent spending and some coordinated spending). Individuals

and nonparty groups who have reached the limit of direct

contributions to a candidate give to a party with the understanding that the contribution to the party will produce

increased party spending for the candidate’s benefit. The

Government argues that if coordinated spending were unlimited, circumvention would increase: because coordinated

spending is as effective as direct contributions in supporting

a candidate, an increased opportunity for coordinated spending would aggravate the use of a party to funnel money to a

candidate from individuals and nonparty groups, who would

thus bypass the contribution limits that Buckley upheld.

IV

Each of the competing positions is plausible at first blush.

Our evaluation of the arguments, however, leads us to reject

the Party’s claim to suffer a burden unique in any way that

should make a categorical difference under the First Amendment. On the other side, the Government’s contentions are

ultimately borne out by evidence, entitling it to prevail in its

characterization of party coordinated spending as the functional equivalent of contributions.

A

In assessing the Party’s argument, we start with a word

about what the Party is not saying. First, we do not understand the Party to be arguing that the line between

independent and coordinated expenditures is conceptually

unsound when applied to a political party instead of an individual or other association. See, e. g., Brief for Respondent

29 (describing “independent party speech”). Indeed, the

good sense of recognizing the distinction between independence and coordination was implicit in the principal opinion in

Colorado I, which did not accept the notion of a “metaphysi-
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cal identity” between party and candidate, 518 U. S., at 622–

623, but rather decided that some of a party’s expenditures

could be understood as being independent and therefore immune to limitation just as an individual’s independent expenditure would be, id., at 619–623.

Second, we do not understand the Party to be arguing that

associations in general or political parties in particular may

claim a variety of First Amendment protection that is different in kind from the speech and associational rights of their

members.10 The Party’s point, rather, is best understood as

a factual one: coordinated spending is essential to parties

because “a party and its candidate are joined at the hip,”

Brief for Respondent 31, owing to the very conception of the

party as an organization formed to elect candidates. Parties, thus formed, have an especially strong working relationship with their candidates, id., at 26, and the speech this

special relationship facilitates is much more effective than

independent speech, id., at 29.

10 We have repeatedly held that political parties and other associations

derive rights from their members. E. g., Norman v. Reed, 502 U. S. 279,

288 (1992); Tashjian v. Republican Party of Conn., 479 U. S. 208, 214–215

(1986); Roberts v. United States Jaycees, 468 U. S. 609, 622–623 (1984);

NAACP v. Alabama ex rel. Patterson, 357 U. S. 449, 459–460 (1958);

Sweezy v. New Hampshire, 354 U. S. 234, 250 (1957). While some commentators have assumed that associations’ rights are also limited to the

rights of the individuals who belong to them, e. g., Supreme Court, 1996

Term, Leading Cases, Associational Rights of Political Parties, 111 Harv.

L. Rev. 197, 315, n. 50 (1997), that view has been subject to debate, see,

e. g., Gottlieb, Fleshing Out the Right of Association, 49 Albany L. Rev.

825, 826, 836–837 (1985); see generally Issacharoff, Private Parties with

Public Purposes, 101 Colum. L. Rev. 274 (2001). There is some language

in our cases supporting the position that parties’ rights are more than the

sum of their members’ rights, e. g., California Democratic Party v. Jones,

530 U. S. 567, 575 (2000) (referring to the “special place” the First Amendment reserves for the process by which a political party selects a standard

bearer); Timmons v. Twin Cities Area New Party, 520 U. S. 351, 373

(1997) (Stevens, J., dissenting), but we have never settled upon the nature

of any such difference and have no reason to do so here.
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There are two basic arguments here. The first turns on

the relationship of a party to a candidate: a coordinated relationship between them so defines a party that it cannot function as such without coordinated spending, the object of

which is a candidate’s election. We think political history

and political reality belie this argument. The second argument turns on the nature of a party as uniquely able to spend

in ways that promote candidate success. We think that this

argument is a double-edged sword, and one hardly limited to

political parties.

1

The assertion that the party is so joined at the hip to candidates that most of its spending must necessarily be coordinated spending is a statement at odds with the history of

nearly 30 years under the Act. It is well to remember that

ever since the Act was amended in 1974, coordinated spending by a party committee in a given race has been limited

by the provision challenged here (or its predecessor). See

18 U. S. C. § 608(f) (1970 ed., Supp. IV); see also Buckley, 424

U. S., at 194 (reprinting then-effective Party Expenditure

Provision). It was not until 1996 and the decision in Colorado I that any spending was allowed above that amount,

and since then only independent spending has been unlimited. As a consequence, the Party’s claim that coordinated

spending beyond the limit imposed by the Act is essential to

its very function as a party amounts implicitly to saying that

for almost three decades political parties have not been functional or have been functioning in systematic violation of the

law. The Party, of course, does not in terms make either

statement, and we cannot accept either implication. There

is no question about the closeness of candidates to parties

and no doubt that the Act affected parties’ roles and their

exercise of power. But the political scientists who have

weighed in on this litigation observe that “there is little evidence to suggest that coordinated party spending limits

adopted by Congress have frustrated the ability of political
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parties to exercise their First Amendment rights to support

their candidates,” and that “[i]n reality, political parties are

dominant players, second only to the candidates themselves,

in federal elections.” Brief for Paul Allen Beck et al. as

Amici Curiae 5–6. For the Party to claim after all these

years of strictly limited coordinated spending that unlimited

coordinated spending is essential to the nature and functioning of parties is in reality to assert just that “metaphysical

identity,” 518 U. S., at 623, between free-spending party and

candidate that we could not accept in Colorado I.11

2

There is a different weakness in the seemingly unexceptionable premise that parties are organized for the purpose

of electing candidates, Brief for Respondent 26 (“Parties

exist precisely to elect candidates that share the goals of

their party”), so that imposing on the way parties serve that

function is uniquely burdensome. The fault here is not so

much metaphysics as myopia, a refusal to see how the power

of money actually works in the political structure.

When we look directly at a party’s function in getting and

spending money, it would ignore reality to think that the

party role is adequately described by speaking generally of

11 To say that history and common sense make us skeptical that parties

are uniquely incapacitated by the challenged limitations is not to deny

that limiting parties’ coordinated expenditures while permitting unlimited

independent expenditures prompts parties to structure their spending in

a way that they would not otherwise choose. See post, at 470. And we

acknowledge below, infra, at 453–455, that limiting coordinated expenditures imposes some burden on parties’ associational efficiency. But the

very evidence cited by the dissent suggests that it is nonetheless possible

for parties, like individuals and nonparty groups, to speak independently.

E. g., App. 218 (statement of Professor Anthony Corrado) (“[I]t is likely

that parties will allocate an increasing amount of money to independent expenditure efforts in the future”); id., at 159 (affidavit of Donald K.

Bain, Chairman of the Colorado Republican Federal Campaign Committee) (describing ability to make independent expenditures as “welcome”).
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electing particular candidates. The money parties spend

comes from contributors with their own personal interests.

PACs, for example, are frequent party contributors who (according to one of the Party’s own experts) “do not pursue

the same objectives in electoral politics” that parties do.

App. 180 (statement of Professor Anthony Corrado). PACs

“are most concerned with advancing their narrow interest[s]” and therefore “provide support to candidates who

share their views, regardless of party affiliation.” Ibid. In

fact, many PACs naturally express their narrow interests

by contributing to both parties during the same electoral

cycle,12 and sometimes even directly to two competing candidates in the same election, L. Sabato, PAC Power, Inside the

World of Political Action Committees 88 (1984).13 Parties

12 As former Senator Paul Simon explained, “I believe people contribute

to party committees on both sides of the aisle for the same reason that

Federal Express does, because they want favors. There is an expectation

that giving to party committees helps you legislatively.” Id., at 270. See

also id., at 269–270 (recounting debate over a bill favored by Federal Express during which a colleague exclaimed “we’ve got to pay attention to

who is buttering our bread”).

The FEC’s public records confirm that Federal Express’s PAC (along

with many others) contributed to both major parties in recent elections.

See, e. g., FEC Disclosure Report, Search Results for Federal Express

Political Action Committee (June 20, 2001), http://herndon1.sdrdc.com/

cgi-bin/com supopp/C00068692; FEC Disclosure Report, Search Results

for Association of Trial Lawyers of America Political Action Committee

(June 20, 2001), http://herndon1.sdrdc.com/cgi-bin/com supopp/C00024521;

FEC Disclosure Report, Search Results for Philip Morris Companies, Inc.,

Political Action Committee (June 20, 2001), http://herndon1.sdrdc.com/

cgi-bin/com supopp/C00089136; FEC Disclosure Report, Search Results

for American Medical Association Political Action Committee (June

20, 2001), http://herndon1.sdrdc.com/cgi-bin/com supopp/C00000422; FEC

Disclosure Report, Search Results for Letter Carriers Political Action

Fund (June 20, 2001), http://herndon1.sdrdc.com/cgi-bin/com supopp/

C00023580. 13 For example, the PACs associated with AOL Time Warner Inc. and

Philip Morris Companies, Inc., both made contributions to the competing 2000 Senate campaigns of George Allen and Charles Robb. See
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are thus necessarily the instruments of some contributors

whose object is not to support the party’s message or to elect

party candidates across the board, but rather to support a

specific candidate for the sake of a position on one narrow

issue, or even to support any candidate who will be obliged

to the contributors.14

Parties thus perform functions more complex than simply

electing candidates; whether they like it or not, they act as

agents for spending on behalf of those who seek to produce

obligated officeholders. It is this party role, which functionally unites parties with other self-interested political actors,

that the Party Expenditure Provision targets. This party

role, accordingly, provides good reason to view limits on coordinated spending by parties through the same lens applied

to such spending by donors, like PACs, that can use parties

as conduits for contributions meant to place candidates

under obligation.

FEC Disclosure Report, Search Results for AOL Time Warner Inc. Political Action Committee (June 20, 2001), http://herndon1.sdrdc.com/cgi-bin/

com supopp/C00339291; FEC Disclosure Report, Search Results for Philip

Morris Companies, Inc., Political Action Committee, supra. 14 We have long recognized Congress’s concern with this reality of political life. For example, in United States v. Automobile Workers, 352 U. S.

567 (1957), Justice Frankfurter recounted Senator Robinson’s explanation

for the Federal Corrupt Practices Act’s restriction of corporate campaign

contributions:

“ ‘We all know . . . that one of the great political evils of the time is

the apparent hold on political parties which business interests and certain

organizations seek and sometimes obtain by reason of liberal campaign

contributions. Many believe that when an individual or association of individuals makes large contributions for the purpose of aiding candidates

of political parties in winning the elections, they expect, and sometimes

demand, and occasionally, at least, receive, consideration by the beneficiaries of their contributions which not infrequently is harmful to the

general public interest.’ ” Id., at 576 (quoting 65 Cong. Rec. 9507–9508

(1924)).
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3

Insofar as the Party suggests that its strong working relationship with candidates and its unique ability to speak in

coordination with them should be taken into account in the

First Amendment analysis, we agree. It is the accepted understanding that a party combines its members’ power to

speak by aggregating contributions and broadcasting messages more widely than individual contributors generally

could afford to do, and the party marshals this power with

greater sophistication than individuals generally could, using

such mechanisms as speech coordinated with a candidate.

In other words, the party is efficient in generating large

sums to spend and in pinpointing effective ways to spend

them. Cf. Colorado I, 518 U. S., at 637 (Thomas, J., concurring in judgment and dissenting in part) (“Political associations allow citizens to pool their resources and make their

advocacy more effective”).

It does not, however, follow from a party’s efficiency in

getting large sums and spending intelligently that limits on

a party’s coordinated spending should be scrutinized under

an unusually high standard, and in fact any argument from

sophistication and power would cut both ways. On the one

hand, one can seek the benefit of stricter scrutiny of a law

capping party coordinated spending by emphasizing the

heavy burden imposed by limiting the most effective mechanism of sophisticated spending. And yet it is exactly this

efficiency culminating in coordinated spending that (on the

Government’s view) places a party in a position to be used

to circumvent contribution limits that apply to individuals

and PACs, and thereby to exacerbate the threat of corruption and apparent corruption that those contribution limits

are aimed at reducing. As a consequence, what the Party

calls an unusual burden imposed by regulating its spending

is not a simple premise for arguing for tighter scrutiny of

limits on a party; it is the premise for a question pointing in
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the opposite direction. If the coordinated spending of other,

less efficient and perhaps less practiced political actors can

be limited consistently with the Constitution, why would the

Constitution forbid regulation aimed at a party whose very

efficiency in channeling benefits to candidates threatens to

undermine the contribution (and hence coordinated spending) limits to which those others are unquestionably subject?

4

The preceding question assumes that parties enjoy a

power and experience that sets them apart from other political spenders. But in fact the assumption is too crude.

While parties command bigger spending budgets than most

individuals, some individuals could easily rival party committees in spending. Rich political activists crop up, and the

United States has known its Citizens Kane. Their money

speaks loudly, too, and they are therefore burdened by restrictions on its use just as parties are. And yet they are

validly subject to coordinated spending limits, Buckley, 424

U. S., at 46–47, and so are PACs, id., at 35–36, 46–47, which

may amass bigger treasuries than most party members can

spare for politics.15

Just as rich donors, media executives, and PACs have the

means to speak as loudly as parties do, they would also have

the capacity to work effectively in tandem with a candidate,

just as a party can do. While a candidate has no way of

coordinating spending with every contributor, there is nothing hard about coordinating with someone with a fortune to

donate, any more than a candidate would have difficulty in

coordinating spending with an inner circle of personal political associates or with his own family. Yet all of them are

15 By noting that other political actors are validly burdened by limitations on their coordinated spending, we do not mean to take a position as

to the wisdom of policies that promote one source of campaign funding or

another. Cf. Brief for Respondent 27, n. 17 (citing academic support for

expanding the role of parties in campaign finance).
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subject to coordinated spending limits upheld in Buckley,

supra, at 53, n. 59. A party, indeed, is now like some of

these political actors in yet another way: in its right under

Colorado I to spend money in support of a candidate without

legal limit so long as it spends independently. A party may

spend independently every cent it can raise wherever it

thinks its candidate will shine, on every subject and any

viewpoint.

A party is not, therefore, in a unique position. It is in the

same position as some individuals and PACs, as to whom

coordinated spending limits have already been held valid,

Buckley, supra, at 46–47; and, indeed, a party is better off,

for a party has the special privilege the others do not enjoy,

of making coordinated expenditures up to the limit of the

Party Expenditure Provision.16

5

The Party’s arguments for being treated differently from

other political actors subject to limitation on political spending under the Act do not pan out. Despite decades of limitation on coordinated spending, parties have not been rendered

useless. In reality, parties continue to organize to elect candidates, and also function for the benefit of donors whose

object is to place candidates under obligation, a fact that parties cannot escape. Indeed, parties’ capacity to concentrate

power to elect is the very capacity that apparently opens

them to exploitation as channels for circumventing contribution and coordinated spending limits binding on other political players. And some of these players could marshal the

same power and sophistication for the same electoral objectives as political parties themselves.

16 This is the position of the FEC in the aftermath of Colorado I: that a

party committee may make coordinated expenditures up to the amount of

its expenditure limit, in addition to the amount of direct contributions

permitted by the generally applicable contribution limit. Brief for Petitioner 5–6, and n. 3.
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We accordingly apply to a party’s coordinated spending

limitation the same scrutiny we have applied to the other

political actors, that is, scrutiny appropriate for a contribution limit, enquiring whether the restriction is “closely

drawn” to match what we have recognized as the “sufficiently important” government interest in combating political corruption. Shrink Missouri, 528 U. S., at 387–388

(quoting Buckley, supra, at 25, 30).17 With the standard

thus settled, the issue remains whether adequate evidentiary grounds exist to sustain the limit under that standard, on the theory that unlimited coordinated spending by

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

through circumvention of valid contribution limits. Indeed,

all Members of the Court agree that circumvention is a valid

theory of corruption; the remaining bone of contention is

evidentiary.18

17 Whether a different characterization, and hence a different type of

scrutiny, could be appropriate in the context of an as-applied challenge

focused on application of the limit to specific expenditures is a question

that, as Justice Thomas notes, post, at 468, n. 2, we need not reach in

this facial challenge. Cf. Brief for Petitioner 9, n. 5 (noting that the FEC

has solicited comments regarding possible criteria for identifying coordinated expenditures).

The Party appears to argue that even if the Party Expenditure Provision is justified with regard to coordinated expenditures that amount to

no more than payment of the candidate’s bills, the limitation is facially

invalid because of its potential application to expenditures that involve

more of the party’s own speech. Brief for Respondent 48–49. But the

Party does not tell us what proportion of the spending falls in one category

or the other, or otherwise lay the groundwork for its facial overbreadth

claim. Cf. Broadrick v. Oklahoma, 413 U. S. 601 (1973) (overbreadth

must be substantial to trigger facial invalidation). 18 Apart from circumvention, the FEC also argues that the Party Expenditure Provision is justified by a concern with quid pro quo arrangements and similar corrupting relationships between candidates and parties

themselves, see Brief for Petitioner 33–38. We find no need to reach that

argument because the evidence supports the long-recognized rationale of

combating circumvention of contribution limits designed to combat the

corrupting influence of large contributions to candidates from individuals
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B

Since there is no recent experience with unlimited coordinated spending, the question is whether experience under

the present law confirms a serious threat of abuse from the

unlimited coordinated party spending as the Government

contends. Cf. Burson v. Freeman, 504 U. S. 191, 208 (1992)

(opinion of Blackmun, J.) (noting difficulty of mustering evidence to support long-enforced statutes). It clearly does.

Despite years of enforcement of the challenged limits, substantial evidence demonstrates how candidates, donors, and

parties test the limits of the current law, and it shows beyond

serious doubt how contribution limits would be eroded if inducement to circumvent them were enhanced by declaring

parties’ coordinated spending wide open.19

and nonparty groups. The dissent does not take issue with this justification as a theoretical matter. See also 213 F. 3d 1221, 1232 (CA10 2000)

(Court of Appeals acknowledging circumvention as a possible “avenue of

abuse”). 19 In Colorado I, the principal opinion suggested that the Party Expenditure Provision was not enacted out of “a special concern about the potentially ‘corrupting’ effect of party expenditures, but rather for the constitutionally insufficient purpose of reducing what [Congress] saw as wasteful

and excessive campaign spending.” 518 U. S., at 618. That observation

was relevant to our examination of the Party Expenditure Provision as

applied to independent expenditures, see id., at 617–618, limits on which

were invalidated with regard to other political actors in Buckley in part

because they were justified by concern with wasteful campaign spending,

Buckley, 424 U. S., at 57. Our point in Colorado I was that there was no

evidence that Congress had a special motivation regarding parties that

would justify limiting their independent expenditures after similar limits

imposed on other spenders had been invalidated. As for the Party Expenditure Provision’s application to coordinated expenditures, on the other

hand, the evidence discussed in the text suggests that the anticircumvention rationale that justifies other coordinated expenditure limits, see Buckley, supra, at 46–47, is at work here as well. The dissent ignores this

distinction, post, at 475, but neither the dissent nor the Party seriously

argues that Congress was not concerned with circumvention of contribution limits using parties as conduits. All acknowledge that Congress

enacted other measures prompted by just that concern. See post, at 481;
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Under the Act, a donor is limited to $2,000 in contributions

to one candidate in a given election cycle. The same donor

may give as much as another $20,000 each year to a national

party committee supporting the candidate.20 What a realist

would expect to occur has occurred. Donors give to the

party with the tacit understanding that the favored candidate will benefit. See App. 247 (declaration of Robert Hickmott, former Democratic fundraiser and National Finance

Director for Timothy Wirth’s Senate campaign) (“We... told

contributors who had made the maximum allowable contribution to the Wirth campaign but who wanted to do more

that they could raise money for the DSCC so that we could

get our maximum [Party Expenditure Provision] allocation

from the DSCC”); id., at 274 (declaration of Timothy Wirth)

(“I understood that when I raised funds for the DSCC, the

donors expected that I would receive the amount of their

donations multiplied by a certain number that the DSCC had

determined in advance, assuming the DSCC has raised other

funds”); id., at 166 (declaration of Leon G. Billings, former

Executive Director of the Democratic Senatorial Campaign

Committee (DSCC)) (“People often contribute to party committees because they have given the maximum amount to

a candidate, and want to help the candidate indirectly by

contributing to the party”); id., at 99–100 (fundraising letter

from Congressman Wayne Allard, dated Aug. 27, 1996, explaining to contributor that “you are at the limit of what you

can directly contribute to my campaign,” but “you can further help my campaign by assisting the Colorado Republican Party”).21

Brief for Respondent 41–42 (“FECA provides interlocking multilayered

provisions designed to prevent circumvention”). 20 See n. 7, supra; see generally Federal Election Commission, Campaign

Guide for Congressional Candidates and Committees 10 (1999). 21 Contrary to the dissent’s suggestion, post, at 477–478, we are not closing our eyes to District Court findings rejecting this record evidence.

After alluding to the evidence cited above, 41 F. Supp. 2d 1197, 1203–1204

(Colo. 1999), and concluding that it did not support theories of corruption that we do not address here, see id., at 1211; n. 18, supra, the District
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Opinion of the Court

Although the understanding between donor and party may

involve no definite commitment and may be tacit on the donor’s part, the frequency of the practice and the volume of

money involved has required some manner of informal bookkeeping by the recipient. In the Democratic Party, at least,

the method is known as “tallying,” a system that helps to

connect donors to candidates through the accommodation of a

party. See App. 246–247 (Hickmott declaration) (“[The tally

system] is an informal agreement between the DSCC and

the candidates’ campaigns that if you help the DSCC raise

contributions, we will turn around and help your campaign”);

id., at 268 (declaration of former Senator Paul Simon) (“Donors would be told the money they contributed could be credited to any Senate candidate. The callers would make clear

that this was not a direct contribution, but it was fairly close

to direct”); id., at 165–166 (Billings declaration) (“There

appeared to be an understanding between the DSCC and

the Senators that the amount of money they received from

the DSCC was related to how much they raised for the

Committee”).22

Such is the state of affairs under the current law, which

requires most party spending on a candidate’s behalf to be

Court mistakenly concluded that Colorado I had rejected the anticircumvention rationale as a matter of law, 41 F. Supp. 2d, at 1211, n. 9. We

explain below, infra, at 463–465, why Colorado I ’s rejection of the anticircumvention rationale in the context of limits applied to independent

party expenditures does not control the outcome of this case. 22 The dissent dismisses this evidence as describing “legal” practices.

Post, at 479. The dissent may be correct that the FEC considers tallying

legal, see Reply Brief for Petitioner 9, n. 3, but one thing is clear: tallying

is a sign that contribution limits are being diluted and could be diluted

further if the floodgates were open. Why, after all, does a party bother

to tally? The obvious answer is that it wants to know who gets the benefit of the contributions to the party, as the record quotations attest. See

also n. 23, infra. And the fact that the parties may not fund sure losers,

stressed by the dissent (post, at 478–479), is irrelevant. The issue is what

would become of contribution limits if parties could use unlimited coordinated spending to funnel contributions to those serious contenders who

are favored by the donors.
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Opinion of the Court

done independently, and thus less desirably from the point of

view of a donor and his favored candidate. If suddenly

every dollar of spending could be coordinated with the candidate, the inducement to circumvent would almost certainly

intensify. Indeed, if a candidate could be assured that donations through a party could result in funds passed through

to him for spending on virtually identical items as his own

campaign funds, a candidate enjoying the patronage of affluent contributors would have a strong incentive not merely

to direct donors to his party, but to promote circumvention

as a step toward reducing the number of donors requiring

time-consuming cultivation. If a candidate could arrange

for a party committee to foot his bills, to be paid with $20,000

contributions to the party by his supporters, the number of

donors necessary to raise $1,000,000 could be reduced from

500 (at $2,000 per cycle) to 46 (at $2,000 to the candidate and

$20,000 to the party, without regard to donations outside the

election year).23

23 Any such dollar-for-dollar pass-through would presumably be too obvious to escape the special provision on earmarking, 2 U. S. C. § 441a(a)(8),

see infra, at 462. But the example illustrates the undeniable inducement

to more subtle circumvention.

The same enhanced value of coordinated spending that could be expected to promote greater circumvention of contribution limits for the

benefit of the candidate-fundraiser would probably enhance the power of

the fundraiser to use circumvention as a tactic to increase personal power

and a claim to party leadership. The affluent nominee can already do this

to a limited extent, by directing donations to the party and making sure

that the party knows who raised the money, and that the needier candidates who receive the benefit of party spending know whom to thank.

The candidate can thus become a player beyond his own race, and the

donor’s influence is multiplied. See generally App. 249 (Hickmott declaration) (“Incumbents who were not raising money for themselves because

they were not up for reelection would sometimes raise money for other

Senators, or for challengers. They would send $20,000 to the DSCC and

ask that this be entered on another candidate’s tally. They might do this,

for example, if they were planning to run for a leadership position and

wanted to obtain the support of the Senators they assisted”). If the effectiveness of party spending could be enhanced by limitless coordination,

the ties of straitened candidates to prosperous ones and, vicariously, to
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Opinion of the Court

V

While this evidence rules out denying the potential for

corruption by circumvention, the Party does try to minimize

the threat. It says that most contributions to parties are

small, with negligible corrupting momentum to be carried

through the party conduit. Brief for Respondent 14. But

some contributions are not small; they can go up to $20,000,

2 U. S. C. § 441a(a)(1)(B),24 and the record shows that even

under present law 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.25 The Party again discounts the threat of outflanking

contribution limits on individuals and nonparty groups by

stressing that incumbent candidates give more excess campaign funds to parties than parties spend on coordinated

expenditures. Brief for Respondent 34. But the fact that

parties may do well for themselves off incumbents does not

defuse concern over circumvention; if contributions to a

party were not used as a funnel from donors to candidates,

there would be no reason for using the tallying system the

way the witnesses have described it.

large donors would be reinforced as well. Party officials who control distribution of coordinated expenditures would obviously form an additional

link in this chain. See id., at 164, 168 (Billings declaration) (“[The DSCC’s

three-member Executive Committee] basically made the decisions as to

how to distribute the money. . . . Taking away the limits on coordinated

expenditures would result in a fundamental transferal of power to certain

individual Senators”). 24 In 1996, 46 percent of itemized (over $200) individual contributions to

the Democratic national party committees and 15 percent of such contributions to the Republican national party committees were $10,000 or more.

Biersack & Haskell, Spitting on the Umpire: Political Parties, the Federal

Election Campaign Act, and the 1996 Campaigns, in Financing the 1996

Election 155, 160 (J. Green ed. 1999). 25 For example, the DSCC has established exclusive clubs for the most

generous donors, who are invited to special meetings and social events

with Senators and candidates. App. 254–255 (Hickmott declaration).
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Opinion of the Court

Finally, the Party falls back to claiming that, even if there

is a threat of circumvention, the First Amendment demands

a response better tailored to that threat than a limitation on

spending, even coordinated spending. Id., at 46–48. The

Party has two suggestions.

First, it says that better crafted safeguards are in place

already, in particular the earmarking rule of § 441a(a)(8),

which provides that contributions that “are in any way earmarked or otherwise directed through an intermediary or

conduit to [a] candidate” are treated as contributions to the

candidate. The Party says that this provision either suffices

to address any risk of circumvention or would suffice if clarified to cover practices like tallying. Id., at 42, 47; see also

213 F. 3d, at 1232. This position, however, ignores the practical difficulty of identifying and directly combating circumvention under actual political conditions. Donations are

made to a party by contributors who favor the party’s candidates in races that affect them; donors are (of course) permitted to express their views and preferences to party officials;

and the party is permitted (as we have held it must be) to

spend money in its own right. When this is the environment for contributions going 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), circumvention is

obviously very hard to trace. The earmarking provision,

even if it dealt directly with tallying, would reach only the

most clumsy attempts to pass contributions through to candidates. To treat the earmarking provision as the outer limit

of acceptable tailoring would disarm any serious effort to

limit the corrosive effects of what Chief Judge Seymour

called “ ‘understandings’ regarding what 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,” id., at 1241 (dissenting opinion); see

also Briffault, Political Parties and Campaign Finance Re-
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Opinion of the Court

form, 100 Colum. L. Rev. 620, 652 (2000) (describing “web of

relations linking major donors, party committees, and

elected officials”).26

The Party’s second preferred prescription for the threat of

an end run calls for replacing limits on coordinated expenditures by parties with limits on contributions to parties, the

latter supposedly imposing a lesser First Amendment burden. Brief for Respondent 46–48. The Party thus invokes

the general rule that contribution limits take a lesser First

Amendment toll, expenditure limits a greater one. That

was one strand of the reasoning in Buckley itself, which rejected the argument that limitations on independent expenditures by individuals, groups, and candidates were justifiable

in order to avoid circumvention of contribution limitations.

424 U. S., at 44. It was also one strand of the logic of the

Colorado I principal opinion in rejecting the Party Expenditure Provision’s application to independent party expenditures. 518 U. S., at 617.27

In each of those cases, however, the Court’s reasoning contained another strand. The analysis ultimately turned on

the understanding that the expenditures at issue were not

potential alter egos for contributions, but were independent

and therefore functionally true expenditures, qualifying for

the most demanding First Amendment scrutiny employed

in Buckley. Colorado I, supra, at 617; Buckley, supra, at

44–47. Thus, in Colorado I we could not assume, “absent

26 The Party’s argument for relying on better earmarking enforcement,

accepted by the dissent, post, at 481, would invite a corresponding attack

on all contribution limits. As we said in Buckley, 424 U. S., at 27–28, and

Shrink Missouri, 528 U. S., at 390, the policy supporting contribution limits is the same as for laws against bribery. But we do not throw out the

contribution limits for unskillful tailoring; prohibitions on bribery, like the

earmarking provision here, address only the “most blatant and specific”

attempts at corruption, 424 U. S., at 28. 27 The dissent therefore suggests, post, at 482, and the District Court

mistakenly concluded, see discussion n. 21, supra, that Colorado I disposed

of the tailoring question for purposes of this case.
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Opinion of the Court

convincing evidence to the contrary,” that the Party’s independent expenditures formed a link in a chain of corruptionby-conduit. 518 U. S., at 617. “The absence of prearrangement and coordination of an expenditure with the candidate

or his agent not only undermines the value of the expenditure to the candidate, but also alleviates the danger that

expenditures will be given as a quid pro quo for improper

commitments from the candidate,” Buckley, supra, at 47;

therefore, “the constitutionally significant fact” in Colorado

I was “the lack of coordination between the candidate and

the source of the expenditure,” 518 U. S., at 617.

Here, however, just the opposite is true. There is no significant functional difference between a party’s coordinated

expenditure and a direct party contribution to the candidate, and there is good reason to expect that a party’s right

of unlimited coordinated spending would attract increased

contributions to parties to finance exactly that kind of

spending.28 Coordinated expenditures of money donated to

a party are tailor-made to undermine contribution limits.

Therefore the choice here is not, as in Buckley and Colorado

I, between a limit on pure contributions and pure expenditures.29 The choice is between limiting contributions and

28 The dissent notes a superficial tension between this analysis and our

recent statement in Bartnicki v. Vopper, 532 U. S. 514 (2001), that “it

would be quite remarkable to hold that speech by a law-abiding [entity]

can be suppressed in order to deter conduct by a non-law-abiding third

party,” id., at 529–530. Unlike Bartnicki, there is no clear dichotomy

here between law abider and lawbreaker. The problem of circumvention

is a systemic one, accomplished only through complicity between donor

and party. 29 Also, again, contrast Bartnicki, where the gulf between the First

Amendment implications of two enforcement options was clear. We rejected the decision to penalize disclosure of lawfully obtained information

of public interest instead of vigorously enforcing prohibitions on intercepting private conversations. Ibid.
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Thomas, J., dissenting

limiting expenditures whose special value as expenditures is

also the source of their power to corrupt. Congress is entitled to its choice.

***

We hold that a party’s coordinated expenditures, unlike

expenditures truly independent, may be restricted to minimize circumvention of contribution limits. We therefore reject the Party’s facial challenge and, accordingly, reverse the

judgment of the United States Court of Appeals for the

Tenth Circuit.

It is so ordered.

Justice Thomas, with whom Justice Scalia and Justice Kennedy join, and with whom The Chief Justice

joins as to Part II, dissenting.

The Party Expenditure Provision, 2 U. S. C. § 441a(d)(3),

severely limits the amount of money that a national or state

committee of a political party can spend in coordination with

its own candidate for the Senate or House of Representatives. See ante, at 438–439, and n. 3. Because this provision sweeps too broadly, interferes with the party-candidate

relationship, and has not been proved necessary to combat

corruption, I respectfully dissent.

I

As an initial matter, I continue to believe that Buckley v.

Valeo, 424 U. S. 1 (1976) (per curiam), should be overruled.

See Nixon v. Shrink Missouri Government PAC, 528 U. S.

377, 410 (2000) (Thomas, J., dissenting); Colorado Republican Federal Campaign Comm. v. Federal Election Comm’n,

518 U. S. 604, 631 (1996) (Colorado I) (Thomas, J., concurring

in judgment and dissenting in part). “Political speech is

the primary object of First Amendment protection,” Shrink

Missouri, supra, at 410–411 (Thomas, J., dissenting); see

also Eu v. San Francisco County Democratic Central
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Thomas, J., dissenting

Comm., 489 U. S. 214, 223 (1989); Mills v. Alabama, 384 U. S.

214, 218 (1966), and it is the lifeblood of a self-governing people, see Shrink Missouri, supra, at 405 (Kennedy, J., dissenting) (“[P]olitical speech in the course of elections [is] the

speech upon which democracy depends”). I remain baffled

that this Court has extended the most generous First

Amendment safeguards to filing lawsuits, wearing profane

jackets, and exhibiting drive-in movies with nudity,1 but has

offered only tepid protection to the core speech and associational rights that our Founders sought to defend.

In this case, the Government does not attempt to argue

that the Party Expenditure Provision satisfies strict scrutiny, see Perry Ed. Assn. v. Perry Local Educators’ Assn.,

460 U. S. 37, 45 (1983) (providing that, under strict scrutiny,

a restriction on speech is constitutional only if it is narrowly

tailored to serve a compelling governmental interest). Nor

could it. For the reasons explained in my separate opinions

in Colorado I, supra, at 641–644, and Shrink Missouri,

supra, at 427–430, the campaign financing law at issue fails

strict scrutiny.

II

We need not, however, overrule Buckley and apply strict

scrutiny in order to hold the Party Expenditure Provision

unconstitutional. Even under Buckley, which described the

requisite scrutiny as “exacting” and “rigorous,” 424 U. S., at

16, 29, the regulation cannot pass constitutional muster. In

practice, Buckley scrutiny has meant that restrictions on

contributions by individuals and political committees do not

violate the First Amendment so long as they are “closely

drawn” to match a “sufficiently important” government interest, Shrink Missouri, supra, at 387–389; see also Buckley,

supra, at 58, but that restrictions on independent expendi1 NAACP v. Button, 371 U. S. 415, 444 (1963); Cohen v. California, 403

U. S. 15, 26 (1971); Erznoznik v. Jacksonville, 422 U. S. 205, 208–215

(1975).
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Thomas, J., dissenting

tures are constitutionally invalid, see Buckley, supra, at

58–59; see also Federal Election Comm’n v. National Conservative Political Action Comm., 470 U. S. 480, 501 (1985).

The rationale for this distinction between contributions and

independent expenditures has been that, whereas ceilings on

contributions by individuals and political committees “entai[l] only a marginal restriction” on First Amendment interests, Buckley, 424 U. S., at 20, limitations on independent

expenditures “impose significantly more severe restrictions

on protected freedoms of political expression and association,” id., at 23.

A

The Court notes this existing rationale and attempts simply to treat coordinated expenditures by political parties

as equivalent to contributions by individuals and political

committees. Thus, at least implicitly, the Court draws two

conclusions: coordinated expenditures are no different from

contributions, and political parties are no different from

individuals and political committees. Both conclusions are

flawed.

1

The Court considers a coordinated expenditure to be an

“ ‘expenditur[e] made by any person in cooperation, consultation, or concert, with, or at the request or suggestion of,

a candidate, his authorized political committees, or their

agents.’ ” Ante, at 438 (quoting 2 U. S. C. § 441a(a)(7)(B)(i)).

This definition covers a broad array of conduct, some of

which is akin to an independent expenditure. At one extreme, to be sure, are outlays that are “virtually indistinguishable from simple contributions.” Colorado I, 518 U. S.,

at 624 (opinion of Breyer, J.). An example would be “a

donation of money with direct payment of a candidate’s

media bills.” Ibid. But toward the other end of the spectrum are expenditures that largely resemble, and should be

entitled to the same protection as, independent expenditures.
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Thomas, J., dissenting

Take, for example, a situation in which the party develops a

television advertising campaign touting a candidate’s record

on education, and the party simply “consult[s],” 2 U. S. C.

§ 441a(a)(7)(B)(i), with the candidate on which time slot the

advertisement should run for maximum effectiveness. I see

no constitutional difference between this expenditure and a

purely independent one. In the language of Buckley, the

advertising campaign is not a mere “general expression of

support for the candidate and his views,” but a communication of “the underlying basis for the support.” 424 U. S., at

21. It is not just “symbolic expression,” ibid., but a clear

manifestation of the party’s most fundamental political

views. By restricting such speech, the Party Expenditure

Provision undermines parties’ “freedom to discuss candidates and issues,” ibid., and cannot be reconciled with our

campaign finance jurisprudence.

2

Even if I were to ignore the breadth of the statutory text,

and to assume that all coordinated expenditures are functionally equivalent to contributions,2 I still would strike down

the Party Expenditure Provision. The source of the “contribution” at issue is a political party, not an individual or

a political committee, as in Buckley and Shrink Missouri.

2 The Court makes this very assumption. See ante, at 464 (“There is

no significant functional difference between a party’s coordinated expenditure and a direct party contribution to the candidate”). To the extent the

Court has not defined the universe of coordinated expenditures and leaves

open the possibility that there are such expenditures that would not be

functionally identical to direct contributions, the constitutionality of the

Party Expenditure Provision as applied to such expenditures remains unresolved. See, e. g., ante, at 456, n. 17. At oral argument, the Government appeared to suggest that the Party Expenditure Provision might not

reach expenditures that are not functionally identical to contributions.

See Tr. of Oral Arg. 15 (stating that the purpose of the Party Expenditure

Provision is simply to prevent someone “from making contributions in the

form of paying the candidate’s bills”).
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Thomas, J., dissenting

Restricting contributions by individuals and political committees may, under Buckley, entail only a “marginal restriction,” Buckley, supra, at 20, but the same cannot be said

about limitations on political parties.

Political parties and their candidates are “inextricably intertwined” in the conduct of an election. Colorado I, supra,

at 630 (Kennedy, J., concurring in judgment and dissenting

in part). 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. See, e. g., California Democratic Party v. Jones, 530 U. S. 567, 575 (2000) (“Some political parties—such as President Theodore Roosevelt’s Bull

Moose Party, the La Follette Progressives of 1924, the Henry

Wallace Progressives of 1948, and the George Wallace American Independent Party of 1968—are virtually inseparable

from their nominees (and tend not to outlast them”); see also

M. Zak, Back to Basics for the Republican Party 1 (2000)

(noting that the Republican Party has been identified as the

“Party of Lincoln”). Most importantly, a party’s success or

failure depends in large part on whether its candidates get

elected. 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. See, e. g.,

App. 137 (declaration of Herbert E. Alexander, Director of

the Citizens’ Research Foundation at the University of

Southern California). Indeed, “it would be impractical and

imprudent . . . for a party to support its own candidates without some form of ‘cooperation’ or ‘consultation.’ ” See Colorado I, 518 U. S., at 630 (Kennedy, J., concurring in judgment and dissenting in part). “[C]andidates are necessary

to make the party’s message known and effective, and vice

versa.” Id., at 629. Thus, the ordinary means for a party

to provide support is to make coordinated expenditures, see,

e. g., App. 137–138 (declaration of Herbert E. Alexander), as

the Government itself maintained just five years ago, see
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Thomas, J., dissenting

Brief for Respondent in Colorado I, O. T. 1995, No. 95–489,

p. 27 (contending that Congress had made an “empirical judgment that party officials will as a matter of course consult

with the party’s candidates before funding communications

intended to influence the outcome of a federal election”);

see also FEC Advisory Opinion 1985–14, CCH Fed. Election Camp. Fin. Guide ¶ 5819, p. 11,186, n. 4 (1985) (“Party

political committees are incapable of making independent

expenditures”).

As the District Court explained, to break this link between

the party and its candidates would impose “additional costs

and burdens to promote the party message.” 41 F. Supp. 2d

1197, 1210 (Colo. 1999). This observation finds full support

in the record. See, e. g., App. 218 (statement of Anthony

Corrado, Associate Professor of Government, Colby College)

(explaining that, to ensure that expenditures were independent, party organizations had to establish legally separate

entities, which in turn had to “rent and furnish an office, hire

staff, and pay other administrative costs,” as well as “engage

additional consulting services” and “duplicate many of the

functions already being undertaken by other party offices”);

id., at 52 (statement by Federal Election Commission admitting that national party established separate entities that

made independent expenditures); id., at 217 (statement of

Anthony Corrado) (explaining that reliance on independent

expenditures would increase fundraising demands on party

organizations because independent expenditures are less effective means of communication); id., at 219 (“[I]ndependent

expenditures do not qualify for the lowest unit rates on the

purchase of broadcasting time”); App. in No. 99–1211 (CA10),

p. 512 (report of Frank J. Sorauf, professor at University

of Minnesota, and Jonathan S. Krasno, professor at Princeton University) (noting inefficiency of independent expenditures). Establishing and maintaining independence also

tends to create voter confusion and to undermine the candidate that the party sought to support. App. 220 (statement

of Anthony Corrado); App. in No. 99–1211 (CA10), at 623–624
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Thomas, J., dissenting

(deposition of John Heubusch); App. 159 (affidavit of Donald

K. Bain) (“[O]ur communications can be more focused, understandable, and effective if the Party and its candidates can

work together”). Finally, because of the ambiguity in the

term “coordinated expenditure,” the Party Expenditure Provision chills permissible speech as well. See, e. g., id., at

159–160 (affidavit of Donald K. Bain). Thus, far from being

a mere “marginal” restraint on speech, Buckley, 424 U. S., at

20, the Party Expenditure Provision has restricted the party’s most natural form of communication; has precluded parties “from effectively amplifying the voice of their adherents,” id., at 22; and has had a “stifling effect on the ability

of the party to do what it exists to do.” 3 Colorado I, supra,

at 630 (Kennedy, J., concurring in judgment and dissenting

in part).

The Court nevertheless concludes that these concerns of

inhibiting party speech are rendered “implausible” by the

nearly 30 years of history in which coordinated spending has

been statutorily limited. Ante, at 449. Without a single

citation to the record, the Court rejects the assertion “that

for almost three decades political parties have not been func3 The Court contends that, notwithstanding this burden, “it is nonetheless possible for parties, like individuals and nonparty groups, to speak

independently.” Ante, at 450, n. 11 (emphasis added). That is correct,

but it does not render the restriction constitutional. If Congress were

to pass a law imposing a $1,000 tax on every political newspaper editorial, the law would surely constitute an unconstitutional restraint on

speech, even though it would still be possible for newspapers to print

such editorials.

The Court’s holding presents an additional First Amendment problem.

Because of the close relationship between parties and candidates, lower

courts will face a difficult, if not insurmountable, task in trying to determine whether particular party expenditures are in fact coordinated or independent. As the American Civil Liberties Union points out, “[e]ven if

such an inquiry is feasible, it inevitably would involve an intrusive and

constitutionally troubling investigation of the inner workings of political

parties.” Brief for American Civil Liberties Union et al. as Amici Curiae 18.
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Thomas, J., dissenting

tional or have been functioning in systematic violation of the

law.” Ibid. I am unpersuaded by the Court’s attempts to

downplay the extent of the burden on political parties’ First

Amendment rights. First, the Court does not examine the

record or the findings of the District Court, but instead relies

wholly on the “observ[ations]” of the “political scientists”

who happen to have written an amicus brief in support of

the petitioner. Ibid. I find more convincing, and more relevant, the record evidence that the parties have developed,

which, as noted above, indicates that parties have suffered

as a result of the Party Expenditure Provision.4 See supra,

at 470–471. Second, we have never before upheld a limitation on speech simply because speakers have coped with the

limitation for 30 years. See, e. g., Bartnicki v. Vopper, 532

U. S. 514, 517 (2001) (holding unconstitutional under the

First Amendment restrictions on the disclosure of the contents of an illegally intercepted communication, even though

federal law had prohibited such disclosure for 67 years).

And finally, if the passage of time were relevant to the constitutional inquiry, I would wonder why the Court adopted

4 Moreover, were I to depart from the record, as does the Court, I could

consider sources suggesting that parties in fact have lost power in recent

years. See, e. g., M. Wattenberg, The Decline of American Political Parties, 1952–1996, p. 174 (1998) (indicating that percentage of voters who

identify with a party has declined while percentage of split tickets has

increased); Maisel, American Political Parties: Still Central to a Functioning Democracy?, in American Political Parties: Decline or Resurgence?,

103, 107–111 (J. Cohen, R. Fleisher, & P. Kantor eds. 2001) (describing

weaknesses of modern political parties). I also could explore how political

parties have coped with the restrictions on coordinated expenditures. As

Justice Kennedy has explained, “[t]he Court has forced a substantial

amount of political speech underground, as contributors and candidates

devise ever more elaborate methods of avoiding contribution limits.”

Nixon v. Shrink Missouri Government PAC, 528 U. S. 377, 406 (2000)

(dissenting opinion). Perhaps political parties have survived, not because

the regulation at issue imposes less than a substantial burden on speech,

but simply because the parties have found “underground” alternatives

for communication.
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Thomas, J., dissenting

a “30-year” rule rather than the possible countervailing

“200-year” rule. For nearly 200 years, this country had

congressional elections without limitations on coordinated

expenditures by political parties. Nowhere does the Court

suggest that these elections were not “functional,” ante, at

449, or that they were marred by corruption.

The Court’s only other response to the argument that parties are linked to candidates and that breaking this link

would impose significant costs on speech is no response at

all. The Court contends that parties are not organized simply to “elec[t] particular candidates” as evidenced by the fact

that many political action committees donate money to both

parties and sometimes even opposing candidates. Ante, at

451. According to the Court, “[p]arties are thus necessarily

the instruments of some contributors whose object is not to

support the party’s message or to elect party candidates

across the board.” Ante, at 451–452. There are two flaws

in the Court’s analysis. First, no one argues that a party’s

role is merely to get particular candidates elected. Surely,

among other reasons, parties also exist to develop and promote a platform. See, e. g., Brief for Respondent 23. The

point is simply that parties and candidates have shared interests, that it is natural for them to work together, and that

breaking the connection between parties and their candidates inhibits the promotion of the party’s message. Second, the mere fact that some donors contribute to both parties and their candidates does not necessarily imply that the

donors control the parties or their candidates. It certainly

does not mean that the parties are mere “instruments” or

“agents,” ante, at 452, of the donors. Indeed, if a party receives money from donors on both sides of an issue, how can

it be a tool of both donors? If the Green Party were to

receive a donation from an industry that pollutes, would the

Green Party necessarily become, through no choice of its

own, an instrument of the polluters? The Court proffers no

evidence that parties have become pawns of wealthy contrib-
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utors. Parties might be the target of the speech of donors,

but that does not suggest that parties are influenced (let

alone improperly influenced) by the speech. Thus, the

Court offers no explanation for why political parties should

be treated the same as individuals and political committees.

B

But even if I were to view parties’ coordinated expenditures as akin to contributions by individuals and political

committees, I still would hold the Party Expenditure Provision constitutionally invalid. Under Shrink Missouri, a

contribution limit is constitutional only if the Government

demonstrates that the regulation is “closely drawn” to match

a “sufficiently important interest.” 528 U. S., at 387–388

(quoting Buckley, 424 U. S., at 25) (internal quotation marks

omitted). In this case, there is no question that the Government has asserted a sufficient interest, that of preventing

corruption. See Shrink Missouri, supra, at 388 (“ ‘[T]he

prevention of corruption and the appearance of corruption’

was found to be a ‘constitutionally sufficient justification’ ”)

(quoting Buckley, supra, at 25–26). The question is whether

the Government has demonstrated both that coordinated expenditures by parties give rise to corruption and that the

restriction is “closely drawn” to curb this corruption. I believe it has not.

1

As this Court made clear just last Term, “[w]e have never

accepted mere conjecture as adequate to carry a First

Amendment burden.” Shrink Missouri, 528 U. S., at 392.

Some “quantum of empirical evidence [is] needed to satisfy

heightened judicial scrutiny of legislative judgments.” Id.,

at 391. Precisely how much evidence is required will “vary

up or down with the novelty and plausibility of the justification raised.” Ibid. Today, the Court has jettisoned this

evidentiary requirement.
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Thomas, J., dissenting

Considering that we have never upheld an expenditure

limitation against political parties, I would posit that substantial evidence is necessary to justify the infringement of

parties’ First Amendment interests. But we need not accept this high evidentiary standard to strike down the Party

Expenditure Provision for want of evidence. Under the

least demanding evidentiary requirement, the Government

has failed to carry its burden, for it has presented no evidence at all of corruption or the perception of corruption.

The Government does not, and indeed cannot, point to any

congressional findings suggesting that the Party Expenditure Provision is necessary, or even helpful, in reducing corruption or the perception of corruption. In fact, this Court

has recognized that “Congress wrote the Party Expenditure

Provision not so much because of a special concern about

the potentially ‘corrupting’ effect of party expenditures, but

rather for the constitutionally insufficient purpose of reducing what it saw as wasteful and excessive campaign

spending.” 5 Colorado I, 518 U. S., at 618. See also ibid.

(“[R]ather 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”).

Without explanation, the Court departs from this earlier,

well-considered understanding of the Party Expenditure

Provision. Were there any evidence of corruption in the

5 The Court contends that I “ignor[e] [a] distinction,” ante, at 457, n. 19:

Whereas Congress may not have been concerned with corruption insofar

as independent expenditures were implicated, Congress was concerned

with corruption insofar as coordinated expenditures were implicated.

This “distinction” must have been lost on Congress as well, which made

no finding that the Party Expenditure Provision serves different purposes

for different expenditures. It also was lost on the Court in Colorado I,

which stated in no uncertain terms that Congress was not motivated by

“the potentially ‘corrupting’ effect of party expenditures.” 518 U. S., at

618.
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Thomas, J., dissenting

record that the parties have since developed, such a departure might be justified. But as the District Court found,

“[t]he facts which [the] FEC contends support its position...

do not establish that the limit on party coordinated expenditures is necessary to prevent corruption or the appearance

thereof.” 41 F. Supp. 2d, at 1211. Indeed, “[n]one of the

FEC’s examples [of alleged corruption] involve[s] coordinated

expenditures.” Ibid. See also App. in No. 99–1211 (CA10),

at 346 (declaration of Herbert E. Alexander) (“In the decades

since 1974, when coordinated expenditures were allowed for

both presidential and congressional campaigns, there has not

been any dispute relating to them, no charges of corruption

or the appearance thereof . . .”); id., at 430 (statement of

Anthony Corrado) (“There is no academic analysis or scholarly study conducted to date that demonstrates that parties

are corrupted by the federally regulated contributions, the

so-called ‘hard-money funds,’ they receive from donors.

None of the studies of party finance or party coordinated

spending contend[s] that these funds are corruptive or generate the appearance of corruption in the political process”);

id., at 624 (deposition of John Heubusch) (testifying that, in

his experience, political party spending was not a source of

corruption of Members of the United States Senate).6

The dearth of evidence is unsurprising in light of the

unique relationship between a political party and its candidates: “The very aim of a political party is to influence

its candidate’s stance on issues and, if the candidate takes

office or is reelected, his votes.” Colorado I, 518 U. S., at

6 In Missouri Republican Party v. Lamb, 227 F. 3d 1070 (2000), the

Eighth Circuit held that the State of Missouri’s restrictions on contributions by political parties violated the First Amendment. In accord with

the Tenth Circuit in this case, the Eighth Circuit concluded that “the record is wholly devoid of any evidence that limiting parties’ campaign contributions will either reduce corruption or measurably decrease the number

of occasions on which limitations on individuals’ campaign contributions

are circumvented.” Id., at 1073.
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Thomas, J., dissenting

646 (Thomas, J., concurring in judgment and dissenting

in part). If coordinated expenditures help achieve this

aim, the achievement “does not . . . constitute ‘a subversion

of the political process.’ ” Ibid. (quoting Federal Election

Comm’n, 470 U. S., at 497). It is simply the essence of our

Nation’s party system of government. One can speak of an

individual citizen or a political action committee corrupting

or coercing a candidate, but “[w]hat could it mean for a party

to ‘corrupt’ its candidate or to exercise ‘coercive’ influence

over him?” 518 U. S., at 646.

Apparently unable to provide an answer to this question,

the Court relies upon an alternative theory of corruption.

According to the Court, the Party Expenditure Provision

helps combat circumvention of the limits on individual donors’ contributions, which limits are necessary to reduce corruption by those donors.7 See ante, at 452–455. The primary problem with this contention, however, is that it too

is plainly contradicted by the findings of the District Court,

see 41 F. Supp. 2d, at 1211, and the overwhelming evidence in the record, see supra, at 475.8 And this contention is particularly surprising in light of Colorado I, in which

we discussed the same opportunity for corruption through

circumvention, and, far from finding it dispositive, concluded

7 The Court does not argue that the Party Expenditure Provision is

necessary to reduce the perception of corruption. Nor could the record

sustain such an argument. See 41 F. Supp. 2d 1197, 1211 (Colo. 1999). 8 Contrary to the Court’s suggestion, ante, at 459, n. 21, the District

Court did not simply conclude that “Colorado I had rejected the anticircumvention rationale as a matter of law.” Instead, the District Court

first concluded there was no evidence of corruption, 41 F. Supp. 2d, at

1211. Only after the District Court made this factual finding did it, in a

footnote, cite Colorado I to support the legal conclusion. See 41 F. Supp.

2d, at 1211, n. 9 (“Moreover, if the skirting of contribution limits is the

issue with which the FEC is concerned . . . there are more tailored means

of addressing such a concern than limiting the coordinated expenditure

limits” (citing Colorado I)).
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Thomas, J., dissenting

that any opportunity for corruption was, “at best, attenuated.” 518 U. S., at 616.

Without addressing the District Court’s determination or

reflecting on this Court’s understanding in Colorado I, the

Court today asserts that its newfound position is supported

by “substantial evidence.” The best evidence the Court can

come up with, however, is the Democratic Senatorial Campaign Committee’s (DSCC) use of the “tally system,” which

“connect[s] donors to candidates through the accommodation

of a party.” Ante, at 459. The tally system is not evidence

of corruption-by-circumvention. In actuality, the DSCC is

not acting as a mere conduit, allowing donors to contribute

money in excess of the legal limits. The DSCC instead has

allocated money based on a number of factors, including “the

financial strength of the campaign,” “what [the candidate’s]

poll numbers looked like,” and “who had the best chance of

winning or who needed the money most.” App. 250–251

(declaration of Robert Hickmott, former Democratic fundraiser and National Finance Director for Timothy Wirth’s

Senate campaign); see also App. in No. 99–1211 (CA10), at

430 (statement of Anthony Corrado) (“When parties are deciding whether to spend funds on behalf of a candidate, they

chiefly examine the competitiveness of the district or race,

the political situation of the incumbent, and the strength of

the party contender’s candidacy”); id., at 563 (deposition of

Donald Bain) (stating that the party generally did not support someone who has a safe seat or is clearly not going to

win). As the District Court found, “the primary consideration in allocating funds is which races are marginal—that

is, which races are ones where party money could be the

difference between winning and losing.” 41 F. Supp. 2d, at

1203. “Maintaining party control over seats is paramount

to the parties’ pursuits.” Ibid.; see also App. in No. 99–1211

(CA10), at 483 (stating that primary goal of legislative campaign committees is “to win or maintain control of the chamber and the powers of the majority legislative party”). The
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Thomas, J., dissenting

“bottom line” of the tally system is that “some candidates

get back more money than they raise, and others get back

less.” App. 250 (declaration of Robert Hickmott).

Moreover, the Court does not explain how the tally system

could constitute evidence of corruption. Both the initial

contribution to the party and the subsequent expenditure by

the party on the candidate are currently legal. In essence,

the Court is asserting that it is corrupt for parties to do what

is legal to enhance their participation in the political process.

Each step in the process is permitted, but the combination

of those steps, the Court apparently believes, amounts to corruption sufficient to silence those who wish to support a candidate. In my view, the First Amendment demands a more

coherent explication of the evidence of corruption.9

Finally, even if the tally system were evidence of

corruption-through-circumvention, it is only evidence of

what is occurring under the current system, not of additional

“corruption” that would arise in the absence of the Party

Expenditure Provision. The Court speculates that, if we invalidated the Party Expenditure Provision, “the inducement

to circumvent would almost certainly intensify.” Ante, at

460. But that is nothing more than supposition, which is

insufficient under our precedents to sustain a restriction

on First Amendment interests. See Shrink Missouri, 528

U. S., at 392 (“We have never accepted mere conjecture as

adequate to carry a First Amendment burden”). See also

United States v. Playboy Entertainment Group, Inc., 529

U. S. 803, 822 (2000) (concluding that the government “must

present more than anecdote and supposition”). And it is

weak supposition at that. The Court does not contend that

9 Ironically, earlier this Term, this Court was less willing to uphold a

speech restriction based on inference of circumvention. See, e. g., Bartnicki v. Vopper, 532 U. S. 514, 529–535 (2001) (holding unconstitutional

the prohibition on disclosure of illegally intercepted conversation even

though the initial step in the disclosure process, the interception, was

illegal and harmful to those whose privacy was invaded).
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Thomas, J., dissenting

the DSCC’s alleged efforts to channel money through the

tally system were restricted in any way by the Party Expenditure Provision. On the contrary, the Court suggests

that a donation to the DSCC was increased by the party; in

other words, the candidate got more than the initial donation.

See ante, at 458 (quoting declaration of Timothy Wirth)

(“ ‘I understood that when I raised funds for the DSCC,

the donors expected that I would receive the amount of

their donations multiplied by a certain number that the

DSCC had determined in advance, assuming the DSCC has

raised other funds’ ” (emphasis added)). Because I am unpersuaded by weak speculation ungrounded in any evidence,

I disagree with the Court’s conclusion that the Party Expenditure Provision furthers the Government interest of reducing corruption.10

10 The other “evidence” on which the Court relies is less compelling than

the tally system. The Court presents four quotations, two of which

do not even support the proposition that donations are funneled through

parties to candidates. See ante, at 458 (quoting declaration of Leon G.

Billings, former Executive Director of the DSCC); ante, at 458. These

comments simply reflect the obvious fact that a candidate benefits

when his party receives money. Neither comment suggests that the candidate is aided through the surreptitious laundering of money, as opposed

to issue advertisements, get-out-the-vote campaigns, and independent

expenditures.

The other two quotations are somewhat suspect in that they are made

by Timothy Wirth, who was the object of the negative advertisements

giving rise to this lawsuit, and by his national finance director. See ibid.

(quoting App. 274 (declaration of Timothy Wirth)); App. 247 (declaration

of Robert Hickmott, former Democratic fundraiser and National Finance

Director for Timothy Wirth’s Senate campaign). Moreover, neither

Wirth nor his finance director described how donations were actually

treated by the DSCC, either in general or in Wirth’s particular case; instead Wirth and his finance director simply reflected on their understandings of how the money would be used in Wirth’s election. As noted above,

the District Court found that “the primary consideration in allocating

funds is which races are marginal.” 41 F. Supp. 2d, at 1203. And the

evidence in the record supports this finding. See supra, at 477.
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2

Even if the Government had presented evidence that the

Party Expenditure Provision affects corruption, the statute still would be unconstitutional, because there are better

tailored alternatives for addressing the corruption. In addition to bribery laws and disclosure laws, see Shrink Missouri, supra, at 428 (Thomas, J., dissenting), the Government has two options that would not entail the restriction of

political parties’ First Amendment rights.

First, the Government could enforce the earmarking rule

of 2 U. S. C. § 441a(a)(8), under which contributions that “are

in any way earmarked or otherwise directed through an

intermediary or conduit to [a] candidate” are treated as contributions to the candidate. Vigilant enforcement of this

provision is a precise response to the Court’s circumvention

concerns. If a donor contributes $2,000 to a candidate (the

maximum donation in an election cycle), he cannot direct the

political party to funnel another dime to the candidate without confronting the Federal Election Campaign Act’s civil

and criminal penalties, see 2 U. S. C. § 437g(a)(6)(C) (civil);

§ 437g(d) (criminal).

According to the Court, reliance on this earmarking provision “ignores the practical difficulty of identifying and directly combating circumvention” and “would reach only the

most clumsy attempts to pass contributions through to candidates.” Ante, at 462. The Court, however, does not cite

any evidence to support this assertion. Nor does it articulate what failed steps the Government already has taken.

Nor does it explain why the burden that the Government

allegedly would have to bear in uncovering circumvention

justifies the infringement of political parties’ First Amendment rights. In previous cases, we have not been so willing

to overlook such failures. See, e. g., Bartnicki, 532 U. S., at

530–531 (“[T]here is no empirical evidence to support the

assumption that the prohibition against disclosures reduces

the number of illegal interceptions”).
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Thomas, J., dissenting

In any event, there is a second, well-tailored option for

combating corruption that does not entail the reduction of

parties’ First Amendment freedoms. The heart of the

Court’s circumvention argument is that, whereas individuals

can donate only $2,000 to a candidate in a given election

cycle, they can donate $20,000 to the national committees of

a political party, an amount that is allegedly large enough to

corrupt the candidate. See ante, at 453. If indeed $20,000

is enough to corrupt a candidate (an assumption that seems

implausible on its face and is, in any event, unsupported by

any evidence), the proper response is to lower the cap. That

way, the speech restriction is directed at the source of the

alleged corruption—the individual donor—and not the party.

“The normal method of deterring unlawful conduct is to impose an appropriate punishment on the person who engages

in it.” Bartnicki, 532 U. S., at 529. “[I]t would be quite

remarkable to hold that speech by a law-abiding [entity] can

be suppressed in order to deter conduct by a non-law-abiding

third party.” Id., at 529–530. The Court takes that unorthodox path today, a decision that is all the more remarkable considering that the controlling opinion in Colorado I

expressly rejected it just five years ago. 518 U. S., at 617

(“We could understand how Congress, were it to conclude

that the potential for evasion of the individual contribution

limits was a serious matter, might decide to change the

statute’s limitations on contributions to political parties.

But we do not believe that the risk of corruption present

here could justify the ‘markedly greater burden on basic

freedoms caused by’ the statute’s limitations on expenditures” (citations omitted)).

In my view, it makes no sense to contravene a political

party’s core First Amendment rights because of what a third

party might unlawfully try to do. Instead of broadly restricting political parties’ speech, the Government should

have pursued better-tailored alternatives for combating the

alleged corruption.