Fed Election Comm'n v. CO Rep Fed Campaign Committe

• Decision Date: 05 May 2000
• Docket Number: No. 99-1211,99-1211
• Parties: (10th Cir. 2000) FEDERAL ELECTION COMMISSION, Plaintiff-Counter-Defendant Appellant, v. COLORADO REPUBLICAN FEDERAL CAMPAIGN COMMITTEE, Defendant-Counter-Plaintiff - Appellee. DEMOCRATIC SENATORIAL CAMPAIGN COMMITTEE; DEMOCRATIC CONGRESSIONAL CAMPAIGN COMMITTEE; COMMON CAUSE; DEMOCRACY 21; THE BRENNAN CENTER FOR JUSTICE AT NEW YORK UNIVERSITY SCHOOL OF LAW, Amici Curiae
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1221

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

FEDERAL ELECTION COMMISSION, Plaintiff-Counter-Defendant Appellant, v. COLORADO REPUBLICAN FEDERAL CAMPAIGN COMMITTEE, Defendant-Counter-Plaintiff - Appellee.

DEMOCRATIC SENATORIAL CAMPAIGN COMMITTEE; DEMOCRATIC CONGRESSIONAL CAMPAIGN COMMITTEE; COMMON CAUSE; DEMOCRACY 21; THE BRENNAN CENTER FOR JUSTICE AT NEW YORK UNIVERSITY SCHOOL OF LAW, Amici Curiae.

No. 99-1211

UNITED STATES COURT OF APPEALS, TENTH CIRCUIT

May 5, 2000

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO (D. Ct. No. 89-N-1159)

David Kolker (Lawrence M. Noble, General Counsel, and Richard B. Bader, Associate General Counsel, with him on the briefs), Federal Election Commission, Washington, DC, appearing for Appellant.

Jan Witold Baran (Thomas W. Kirby, Carol A. Laham, and Kirk L. Jowers, with him on the brief), Wiley, Rein & Fielding, Washington, DC, appearing for Appellee.

Robert F. Bauer and Marc E. Elias, Perkins Coie, LLP, Washington, DC, filed an amicus curiae brief for Democratic Senatorial Campaign Committee and Democratic Congressional Campaign Committee on behalf of Appellant.

Roger M. Witten, Daniel H. Squire, and Nicholas Coleman, Wilmer, Cutler & Pickering, Washington, DC; Fred Wertheimer, Democracy 21, Washington, DC; and Donald J. Simon, Common Cause, Washington, DC, filed an amicus curiae brief for Common Cause and Democracy 21 on behalf of Appellant.

Nancy Northup and Elizabeth Daniel, Brennan Center for Justice at New York University School of Law, New York, New York, filed an amicus curiae brief on behalf of Appellant.

Before SEYMOUR, Chief Judge, TACHA, and KELLY, Circuit Judges.

TACHA, Circuit Judge.

Section 441a(d)(3) of the Federal Election Campaign Act, 2 U.S.C. 431-455, limits the amount of money a political party may spend in coordination with its candidates for Congress. The Federal Election Commission (FEC) appeals the district court's ruling that this limitation violates the First Amendment. We exercise jurisdiction pursuant to 28 U.S.C. 1291 and affirm.

I.

We analyze 441a(d)(3) within its statutory context. The Federal Election Campaign Act (FECA or "Act"), as amended in 1974, limited the amount of money that individuals, corporations, banks, labor organizations, political committees, (e.g., political action committees, or PACs), and political parties could contribute to candidates for federal office. See 18 U.S.C. 608, 610 (1970 ed. Supp. IV). The Act also imposed limits on the amount these groups -- and the candidates themselves -- could spend in connection with a campaign for federal office. Id.

Shortly after Congress amended FECA, the Supreme Court struck down many of the Act's expenditure limits as unconstitutional under the First Amendment's free speech and association guarantees. Buckley v. Valeo, 424 U.S. 1, 39-59 (1976) (per curiam) (invalidating FECA provisions limiting (1) individual expenditures independent of a candidate's campaign, (2) a candidate's expenditure of personal funds, and (3) overall campaign expenditures); see also Federal Election Comm'n v. National Conservative Political Action Comm., 470 U.S. 480, 497 (1985) (NCPAC) (invalidating FECA provision limiting independent expenditures by political committees).

However, the Court generally has upheld FECA's contribution limits. Buckley, 424 U.S. at 28, 29, 35-36 (finding constitutional the Act's limits on the amount individuals and political committees can contribute to a candidate for federal office); California Med. Ass'n v. Federal Election Comm'n, 453 U.S. 182, 193-99 (1981) (upholding limits on the amount individuals may contribute to political committees). Furthermore, the Supreme Court has recognized that "coordinated expenditures" qualify as contributions under FECA and, therefore, are subject to FECA's contribution limits. Buckley, 424 U.S. at 46-47; NCPAC, 470 U.S. at 492. Thus, FECA's contribution limits apply not only when an individual or group contributes money directly to a campaign, but also when an individual or group contributes money indirectly by making expenditures coordinated with the campaign. See 2 U.S.C. 441a(a)(7)(B)(i) ("[E]xpenditures made by any person in cooperation, consultation, or concert with . . . a candidate . . . shall be considered to be a contribution to such candidate.").

As presently codified, the Act sets the following contribution limits: A "person" is entitled to contribute $1000 to a candidate "with respect to any election for Federal office;" $5000 in any calendar year to a political committee that is not established and maintained by a national political party; and $20,000 in any calendar year to the political committees of a national political party. 2 U.S.C. 441a(a)(1). However, no person may make contributions totaling more than $25,000 in any year. Id. 441a(a)(3). A "multicandidate political committee" (or PAC) may contribute $5000 to a candidate with respect to any federal election; $5000 in any calendar year to any other political committee that is not established and maintained by a national political party; and $15,000 in any calendar year to the political committees of a national political party. Id. 441a(a)(2).

National and state political parties meet FECA's definition of "multicandidate political committees." See id. 441a(a)(4) (defining a "multicandidate political committee" as "a political committee . . . which has received contributions from more than 50 persons, and . . . has made contributions to 5 or more candidates for Federal office"). Thus, political parties ordinarily would be subject to the above dollar limits. However, Congress recognized that parties are different than PACs. Consequently, Congress exempted political parties from the Act's general contribution limits and imposed substitute limits upon them. Id. 441a(d)(1), (3). Section 441a(d)(3), known as the Party Expenditure Provision, provides that political parties "may not make any expenditure in connection with the general election campaign of a candidate for Federal office" which exceeds the greater of $20,000 or 2 cents multiplied by the voting age population of the state.¹ Id. 441a(d)(3).

II.

The prior proceedings in this case have narrowed the issues we must decide. In January 1986, Timothy Wirth, then a Democratic Congressman from Colorado, announced that he would seek Colorado's open Senate seat in November. Several months later, before the Democratic primary or the Republican convention, the Colorado Republican Federal Campaign Committee ("Colorado Party" or "Party") developed and aired a radio advertisement criticizing Wirth's voting record. In its quarterly report to the FEC, the Party classified the advertisement outlay as an operating expense instead of a 441a(d)(3) expenditure. The Colorado Democratic Party filed an administrative complaint with the FEC, alleging that the Party's purchase of radio time was an expenditure in connection with the Senate campaign and exceeded 441a(d)(3)'s spending limit. The FEC agreed with the Democratic Party and filed suit in district court against the Colorado Party.

On motion for summary judgment, the Party argued that the outlay did not fall within the Party Expenditure Provision because the Colorado Party did not develop the advertisement "in connection with" the campaign of any federal candidate. The Party also asserted a counterclaim, alleging that the Party Expenditure Provision violated its First Amendment rights of free speech and association. The district court narrowly interpreted 441a(d)(3) as limiting only those expenditures that use "'express words of advocacy of election or defeat.'" Federal Election Comm'n v. Colorado Republican Fed. Campaign Comm., 839 F. Supp. 1448, 1455 (D. Colo. 1993) (quoting Buckley, 424 U.S. at 44 n.52). Under this statutory construction, the district court found that the provision did not cover the Wirth advertisement and entered summary judgement in favor of the Party. Id. at 1456-57. Because the court resolved the dispute on statutory grounds, it did not reach the Party's constitutional challenge. Id. at 1457.

On appeal, the FEC argued for a broader interpretation of the provision as limiting "expenditures depicting a clearly identified candidate and conveying an electioneering message." Federal Election Comm'n v. Colorado Republican Fed. Campaign Comm., 59 F.3d 1015, 1022 (10th Cir. 1995). We agreed with the FEC and thus concluded that the advertisement was subject to the limits of the Party Expenditure Provision. Id. at 1023. We also reached the constitutional challenge and held that 441a(d)(3) did not impermissibly burden the Party's First Amendment rights. Id.

The Supreme Court granted certiorari "primarily to consider the Colorado Party's argument that the Party Expenditure Provision violates the First Amendment either facially or as applied." Colorado Republican Fed. Campaign Comm. v. Federal Election Comm'n, 518 U.S. 604, 613 (1996) (internal quotation marks and citation omitted) ("Colorado I"). Three members of the Court found the provision unconstitutional as applied to the expenditure at issue, and four other Justices joined in this judgment. Id. at 608.²

Based on the summary judgment record before it, the plurality noted that the Colorado Party had developed and approved the advertisement script independent of any candidate for Federal office. Id. at 613-14. In fact, at the time the advertisement was placed, the Party had not yet selected a senatorial nominee. Id. Thus, the plurality concluded that the advertisement in question was an "independent expenditure," not a "coordinated expenditure" subject to the limits of 441a(d)(3). Id. at 613. As such, the expenditure was entitled to full First Amendment protection under controlling precedent. Id. at 614-15 (citing NCPAC, 470 U.S. at 97; Buckley, 424 U.S. at 19-21).

Having found the provision unconstitutional as applied to this particular independent expenditure, the plurality...