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      FEC Record: Litigation
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      Cao v. FEC (district court)

FEC Record: LitigationCao v. FEC (district court)March 1, 2010 On January 27, 2010, the U.S. District Court for the Eastern District of Louisiana granted in part and denied in part the motion of Louisiana Congressman Anh "Joseph" Cao, the Republican National Committee (RNC) and the Republican Party of Louisiana (LA-GOP, formerly "RPL") (collectively, the Plaintiffs) to certify to the Fifth Circuit Court of Appeals challenges to the constitutionality of the coordinated party expenditure limits and party contribution limits. The court certified questions regarding whether the Plaintiffs had sufficient injury to create a constitutional case, whether certain coordinated expenditure and contribution limits as applied to coordinated communications violate the Plaintiffs' First Amendment rights and whether the $5,000 limit on contributions from political parties to candidate campaigns violates a political party’s First Amendment rights because it is the same limit as for political action committees and the limit is not adjusted for inflation. The district court denied certification and granted summary judgment in favor of the FEC on all of Plaintiffs' other claims. Background On December 4, 2008, the Plaintiffs filed an amended complaint in the U.S. District Court for the Eastern District of Louisiana challenging the constitutionality of the party expenditure provision limits at 2 U.S.C. §§441a(d)(2)-(3) as applied to their planned coordinated party expenditures. The Plaintiffs alleged that the party expenditure provision of the Federal Election Campaign Act (the Act) and the $5,000 contribution limit at 2 U.S.C. §441a(a)(2)(A) are unconstitutional as applied to party coordinated expenditures that are not "unambiguously campaign related" (Buckley v Valeo, 424 U.S. 1, 81 (1976)) or "functionally identical to contributions" (FEC v. Colo. Rep. Fed. Campaign Comm., 533 U.S. 431, 468 n.2 (2001)) ("Colorado II"). In addition, the Plaintiffs argued that the application of multiple coordinated expenditure limits for the same office is unconstitutional because it is ineffectual in preventing corruption and that the base amounts are too low. The Plaintiffs also challenged the constitutionality of the $5,000 contribution limit on the grounds that the same limits apply to parties as to political action committees, and argued that the limit is too low and not indexed for inflation. The original complaint was filed by the Plaintiffs on November 13, 2008. Under the Act, a national party committee and state party committees may make expenditures in connection with the general election campaigns of federal candidates that are coordinated with these candidates. 11 CFR 109.30. Coordinated party expenditures do not count against the contribution limits, but are subject to a separate set of limits. 11 CFR 109.32. The Act provides a formula for calculating coordinated party expenditure limits. For House candidates, the coordinated party expenditure limit is $10,000 increased by the Cost of Living Adjustment (COLA) or, in states with only one representative, the same as the Senate limit. For Senate candidates, the coordinated party expenditure limit is the greater of the number of the state voting age population multiplied by two cents and increased by the COLA, or $20,000 increased by the COLA. For Presidential candidates, the coordinated party expenditure limit is the number of the national voting age population multiplied by two cents and increased by the COLA. 11 CFR 109.32. District court decision The district court granted in part the Plaintiffs' Motion to Certify. Four questions were found non-frivolous and certified to en banc Fifth Circuit Court of Appeals. The defendant's Motion for Summary Judgment was granted for all issues not certified to the Fifth Circuit. Standing. The court found non-frivolous the question whether Plaintiffs had alleged sufficient injury to create a constitutional "case or controversy" within the judicial power of Article III. However, the court held that LA-GOP does not have standing to bring a Motion to Certify under §437h of the Act, as LA-GOP is neither a national committee of a political party nor an individual eligible to vote for President. Unambiguously Campaign Related. The court found frivolous the Plaintiffs' arguments that several provisions of the Act are vague, overbroad or beyond Congress' authority to regulate because they allegedly restrict speech that is not "unambiguously campaign related." The provisions challenged under that theory were those that limit expenditures "in connection" with a candidate's campaign (§§441a(d)(2-3)), limit to $5,000 contributions from multicandidate political committees to any candidate (§441a(a)(2)(A)) and define expenditures "made in cooperation, consultation or concert" with a candidate as contributions (§441a(a)(7)(B)(i)). Own Speech. The court found non-frivolous the Plaintiffs' argument that coordinated expenditures cannot be constitutionally limited if they are the party’s "own speech." The court noted that in both Buckley, 424 U.S. at 47, and Colorado II, 533 U.S. at 457, 463-64, the Supreme Court reaffirmed that coordinated expenditures are comparable to contributions under First Amendment analysis. However, the district court stated that coordinated expenditures that explicitly convey an underlying basis for support arguably begin to look more like a "direct restraint ... on political communication." Buckley, 424 U.S. at 21. Thus, the court found the argument non-frivolous. Constitutionality of Coordinated Expenditure Limits. The court found frivolous the Plaintiffs' argument that Congressional discretion to set different coordinated expenditure limits in different races in different states violates Plaintiffs' First Amendment rights. The court also held that the variable voting-age-population formula is constitutional. The court noted that legislators should determine and assess limits, not judges. The court did not certify Plaintiffs' argument that current coordinated expenditure limits are unconstitutionally low and violate First Amendment rights. The court found no evidence that the effect of then-candidate Cao's speech was weakened by a lack of resources due to these limits. The court granted the FEC’s Motion for Summary Judgment on these issues. Constitutionality of $5,000 Party Contribution Limit. The court found non-frivolous Plaintiffs' question as to whether the $5,000 contribution limit in 2 U.S.C. §441a(2)(A) is unconstitutional because it imposes the same limits on parties as it does on political action committees (PACs). The district court stated that Colorado II had suggested that parties may warrant additional constitutional protections but had at the time declined to address this specific question. 533 U.S. at 448 n.10. The district court stated that this was sufficient for the court to find the Plaintiffs' argument non-frivolous. The court also found non-frivolous the Plaintiffs' argument that the $5,000 contribution limit in §441(a)(2)(A) is unconstitutional because it is not adjusted for inflation. The court stated that inflation in the years after passage of the statute presents a valid basis for a facial challenge and that the $5,000 limit (which adjusted for inflation today would represent $19,000) might be unconstitutionally low. Finally, the court found frivolous the Plaintiffs’ argument that the limit is too low to allow political parties to fulfill their historic and important role. The court determined that there was insufficient evidence presented to show that limits hindered the parties' ability to support candidates in the most recent election cycle. Constitutionality of Additional Party Contribution Limit For Senate Races. The court found frivolous Plaintiffs’ argument that the provision in 2 U.S.C. §441a(h) that allows national party committees to contribute an additional $35,000 (adjusted for inflation to $39,900 in 2008) to candidates for Senate vitiates the anti-corruption interest of any lower limits for either Senators or Representatives. The court stated that these limits are best left to Congressional discretion. The court certified the following questions to the Fifth Circuit: Has each of the Plaintiffs alleged sufficient injury to constitutional rights enumerated in the following questions to create a constitutional "case or controversy" within the judicial powers of Article III?Do the expenditure and contribution limits and contribution provision in 2 U.S.C. §§441a(d)(2-3), 441a(a)(2)(A) and 441a(a)(7)(B)(i) violate the First Amendment rights of one or more of Plaintiffs as applied to coordinated communications that convey the basis for the expressed support?Does the $5,000 contribution limit at 2 U.S.C. §441a(a)(2)(A) violate the First Amendment rights of one or more Plaintiffs as applied to a political party's in-kind and direct contributions because it imposes the same limits on parties as on political action committees?Does the $5,000 contribution limit at 2 U.S.C. §441a(a)(2)(A) facially violate the First Amendment rights of one or more Plaintiffs because it is not adjusted for inflation? The text of the court's opinion is available at http://transition.fec.gov/law/litigation/cao_order.pdf. U.S. District Court for the Eastern District of Louisiana (No. 08-4887).
 Author
          Stephanie Caccomo


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This information is not intended to replace the law or to change its meaning, nor does this information create or confer any rights for or on any person or bind the Federal Election Commission or the public. The reader is encouraged also to consult the Federal Election Campaign Act of 1971, as amended (52 U.S.C. 30101 et seq.), Commission regulations (Title 11 of the Code of Federal Regulations), Commission advisory opinions and applicable court decisions.


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