There is a pending cert petition before the Supreme Court in National Republican Senatorial Committee v. Federal Election Committee that deserves the Court’s consideration. The immediate issue in the case is a challenge to limits on coordinated campaign spending by party organizations. More broadly, this marks another chapter in the story of Congress’ long experiment with the rationing of political speech under the guise of trying to fight corruption or “level the playing field.” A number of federal statutes, however attractively packaged they are under the label of campaign finance reform, have been a flat failure in accomplishing either goal. Even worse, the entire exercise of policing contributions beyond actual corruption flouts the First Amendment by putting the government in the position of limiting and distinguishing the types of speech it deems acceptable.
While the Supreme Court has vindicated First Amendment challenges to such speech regulation in cases like Citizens United v. Federal Election Commission (2010), invalidating independent spending and broadcast bans by corporations and unions, and McCutcheon v. Federal Election Commission (2014), invalidating aggregate contribution limits, it has yet to correct some lingering earlier case law. In Federal Election Commission v. Colorado Republican Federal Campaign Committee (2001), the Court narrowly rejected a facial challenge to the Federal Election Campaign Act’s coordinated spending limits for parties by a 5–4 margin. (By contrast, in a 1996 case involving the same parties in an as-applied challenge, a fragmented Court had struck down restrictions on purely independent expenditures. The later case is often cited as Colorado II.) The provision at issue set limits on the amount of money federal or state political party committees could spend on campaigns coordinated with the party’s candidate for office.
In National Republican Senatorial Committee, the Republican Party’s senatorial and congressional committees, along with then-Senator J.D. Vance and former Representative Steve Chabot, challenged the same limitation. In September, the Sixth Circuit en banc rejected the challenge, but on the weight of Supreme Court precedent more than the merits. In his decision for the court, Chief Judge Jeffrey Sutton acknowledged that the Supreme Court “tightened the free-speech restrictions on campaign finance regulations in the last two decades” and that “the terrain of political fundraising and spending” has recently changed in other ways. But those trends do not “give[] us authority to overlook or for that matter override the Supreme Court’s decision in this case. The key reality is that the Supreme Court has not overruled the 2001 Colorado decision or the deferential review it applied to these provisions of the Act.” The court reached that conclusion even though cases as recent as Federal Election Commission v. Ted Cruz for Senate (2022), which struck down limits on post-election contributions a candidate could receive to repay loans to his own campaign, less deferentially “demand ‘actual evidence’ that a spending restriction will reduce ‘quid pro quo corruption or its appearance.’”
Sutton acknowledged the speech interests at stake: The law restricted the party committees’ “wish to obtain input about their campaign advertisements from the candidates they support in order to unify their political message . . . . The no-coordination requirements also increase their costs, create redundancies, and discourage them from communicating effectively with their candidates and spending money efficiently to support them.”
Judge Amul Thapar, who joined Sutton’s opinion, added an originalist concurring opinion in which he did not mince words about his misgivings regarding the law: “Colorado II allows us to dodge the grave constitutional issues posed by coordinated-party-spending limits. These limits run afoul of modern campaign-finance doctrine and burden parties’ and candidates’ core political rights.” In a separate concurrence, Judge John K. Bush called on the Supreme Court to “consider revisiting Colorado II” and offered analysis from the founding generation distinguishing “quid pro quo corruption” from coordination: “Bribery was investigated and prosecuted if warranted. Coordinated political contributions and spending were not.” In fact, he observed, “Coordinated political money . . . not only talked; it fought for our nation’s independence.”
Five judges, all appointed by Democratic presidents, concurred in the judgment, embracing the reasoning as well as the holding of Colorado II while rejecting the analysis of their colleagues. Judge Chad Readler was the lone dissenter, having found this to be “the rare case where doctrinal developments have entirely displaced an earlier Supreme Court decision.” When it came to First Amendment analysis, the judges who joined Judge Sutton’s majority opinion shared more common ground with the dissent than with the separately concurring Democratic appointees.
If there remains any doubt that the Court should take this case and reverse, consider that Solicitor General John Sauer’s respondents’ brief, filed for the government on Monday, refuses to defend the statute. As the brief straightforwardly asserts, “The government agrees with petitioners that the challenged statute abridges the freedom of speech under this Court’s recent First Amendment and campaign-finance precedents.” Sauer asks the Court to grant certiorari and appoint an amicus curiae to defend the law. If only every cert petition were such an easy call.