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No. 00-191
In the Supreme Court of the United States
FEDERAL ELECTION COMMISSION, PETITIONER
v.
COLORADO REPUBLICAN
FEDERAL CAMPAIGN COMMITTEE
ON WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR
THE TENTH CIRCUIT
REPLY BRIEF FOR THE PETITIONER
LOIS G. LERNER
Acting General Counsel
Federal Election
Commission
Washington, D.C. 20463
SETH P. WAXMAN
Solicitor General
Counsel of Record
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
In the Supreme Court of the United States
No. 00-191
FEDERAL ELECTION COMMISSION, PETITIONER
v.
COLORADO REPUBLICAN
FEDERAL CAMPAIGN COMMITTEE
ON WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR
THE TENTH CIRCUIT
REPLY BRIEF FOR THE PETITIONER
As we explain in our opening brief (at 5-6, 18-19), the statutory provision
at issue in this case (2 U.S.C. 441a(d)) does not impose any special disadvantage
on political parties. Rather, the effect of Section 441a(d) is to allow
party committees to make coordinated expenditures in support of their candidates
for federal office in amounts far greater than the limits that apply to
other donors. Our opening brief further explains (at 16-18) that, as applied
to individuals and to organizations other than political parties, the coordinated
expenditure limits contained in the Federal Election Campaign Act of 1971
(FECA) have previously been sustained by this Court as a constitutionally
permissible means of addressing the danger of actual or perceived political
corruption. Thus, the question in this case is whether a party committee
is entitled by the First Amendment to a complete exemption from coordinated
spending limits that are valid as applied to other persons.
Respondent offers two basic arguments in support of its claim to such an
exemption. First, respondent contends (Br. 25-32) that a restriction on
coordinated spending-or, to put it a slightly different way, a requirement
that spending in excess of the applicable FECA limit must be made independently
of the candidate-imposes greater burdens on political parties than on other
donors. Second, respondent argues (Br. 33-49) that the government has failed
to demonstrate the corruptive potential of coordinated spending by political
parties. For the reasons that follow, those arguments lack merit.
I. THE DISTINCTIVE RELATIONSHIP BETWEEN POLITICAL PARTIES AND THEIR CANDIDATES
PROVIDES NO BASIS FOR FACIAL INVALIDATION OF THE FECA'S LIMITS ON COORDINATED
PARTY SPENDING
Respondent contends that the FECA limits on coordinated expenditures impose
greater burdens on political parties than on other donors because (a) "[p]arties
exist precisely to elect candidates that share the goals of their party"
(Br. 26), and (b) "political parties find independent speech to be
much less effective than coordinated speech" (Br. 29). Those arguments
provide no basis for facial invalidation of the FECA's limits on party-coordinated
expenditures.
A. In Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam), this Court upheld
the FECA's limitations on contributions, finding that they serve a compelling
government interest in "the prevention of corruption and the appearance
of corruption spawned by the real or imagined coercive influence of large
financial contributions on candidates' positions and on their actions if
elected to office." Id. at 25; see id. at 23-38. The Court recognized
as well that "controlled or coordinated expenditures are treated as
contributions rather than expenditures under the Act," in order to
"prevent attempts to circumvent the Act through prearranged or coordinated
expenditures amounting to disguised contributions." Id. at 46, 47.
The Court struck down the Act's restrictions on independent expenditures,
however, concluding that "the independent advocacy restricted by the
[FECA] does not presently appear to pose dangers of real or apparent corruption
comparable to those identified with large campaign contributions."
424 U.S. at 46. The Court explained that
[u]nlike contributions, such 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 [independent] 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.
Id. at 47; see id. at 39-59. Thus, respondent's assertion that its independent
expenditures are "much less effective than coordinated speech"
provides no basis for distinguishing political parties from other would-be
donors. To the contrary, the view that independent expenditures will generally
be less efficacious than coordinated spending in bringing about the election
of the payor's favored candidate was a central premise of the Buckley decision.
B. Respondent contends (Br. 29) that the extensive interaction between candidates
and party officials during the course of a campaign makes it especially
difficult and inefficient for the party to establish and maintain independence
from the candidate with respect to particular expenditures. Respondent offers
no meaningful support for that statement beyond the bare assertion that
it is so.1 But even if respondent's contention were empirically well-supported,
the difficulty of making independent expenditures would not entitle any
particular donor to make coordinated expenditures in excess of the FECA
limits. No individual or non-party organization would be permitted to grant
itself (in effect) an exemption from the FECA's coordinated spending limits
simply by establishing a relationship with a candidate that made independent
expenditures infeasible. Even assuming arguendo the empirical accuracy of
respondent's assertion- i.e., that the existence of a particularly close
overall relationship between a candidate and a political committee makes
it more "complex, expensive, and difficult" (Resp. Br. 29) for
the organization to make independent expenditures in the candidate's support-respondent
is simply confronted with the same choice that the FECA requires of any
other organization engaged in political advocacy.
C. As we explain in our opening brief (at 39-49), political parties have
no constitutional entitlement to an exemption from the coordinated spending
limits that apply to other potential donors. Congress has recognized, however,
that parties have come to play a role in the Nation's electoral processes
significantly different from that of other political organizations. Section
441a(d) facilitates the parties' performance of their distinctive functions
by authorizing state and national party committees to make coordinated expenditures
that would otherwise substantially exceed the Act's limitations on contributions
to candidates. See Gov't Br. 18-19.
Thus, insofar as the maintenance of independence from the candidate with
respect to particular expenditures might be thought to entail greater practical
burdens on party committees than on other political organizations, Section
441a(d) alleviates the disparity by authorizing parties to engage in substantially
greater coordinated spending than the Act otherwise allows. As our opening
brief explains (at 47-49), the task of fashioning an appropriate balance
between facilitation of the parties' distinctive functions and the prevention
of political corruption is preeminently a legislative endeavor. Respondents
have offered no persuasive ground for concluding that Congress has drawn
the balance in a constitutionally unacceptable manner.
D. As our opening brief explains (at 20-21), the effect of the court of
appeals' decision is to preclude enforcement of the FECA limits on party-coordinated
expenditures even with respect to party spending (e.g., payment of the candidate's
bills) that is the functional and constitutional equivalent of a direct
contribution of money. Respondent does not explain how the FECA limits on
that form of coordinated spending subject political parties to greater hardship
than other political committees experience as a result of the analogous
(though much lower) limits applicable to them. Indeed, respondent expressly
disavows any constitutional challenge to the FECA's $5000 limit on the amount
that a political party may contribute to one of its candidates. See Resp.
Br. 50 n.31.
Nor does respondent suggest-much less demonstrate-that expenditures of the
sort described above constitute an insubstantial portion of overall party-coordinated
spending. Respondent asserts (Br. 25) that Section 441a(d) "limits
party speech," based on its expert's determination that "[o]ver 90% of the monies spent
by national party committees on behalf of their candidates is spent on political
communication." Respondent's statement is apparently intended to convey
the impression that most party-coordinated spending is devoted to communication
of the party's own ideas. But money "spent on political communication"
would include "direct payment of a candidate's media bills"-a
form of coordinated expenditure that involves no meaningful communication
by the party itself, and that the plurality in Colorado I characterized
as "virtually indistinguishable from simple contributions." Pet.
App. 111a. Indeed, the same expert stated, with respect to the national
parties' coordinated expenditures, that "[t]he predominant approach
is to provide candidates with the funding needed to broadcast their messages
or post letters to selected voters within their districts." J.A. 209;
see Gov't Br. 20-21. That Section 441a(d) constrains a political party's
ability to pay for its candidates' speech does not mean that the statute
significantly impairs the party's ability to engage in its own communication.2
II. THE FECA LIMITS ON PARTY-COORDINATED EXPENDITURES ARE A REASONABLE AND
CONSTITUTIONALLY PERMISSIBLE MEANS OF PREVENTING ACTUAL OR APPARENT POLITICAL
CORRUPTION
Respondent's principal argument is that the government has failed to demonstrate
a sufficient logical or empirical connection between party-coordinated expenditures
and political corruption to justify the spending limits imposed by Section
441a(d). For the reasons that follow, that argument is unsound.
A. As our opening brief explains (at 31-32 n.14), the Federal Election Commission
introduced extensive evidence indicating that donors who have contributed
the maximum permissible amount to an individual candidate are frequently
urged to contribute additional sums to the candidate's party, and through
informal understandings are encouraged to expect that the party will make
equivalent expenditures in support of the candidate's campaign. The purpose
and effect of fundraising techniques like the "tally system" is
that both the donor and the candidate are aware of the causal connection
between the donor's contribution to the party and the candidate's subsequent
receipt of financial support. See, e.g., J.A. 273 (former Senator Tim Wirth
asserts that in soliciting funds for the state party, he "understood
that the solicitees who made contributions to the party almost always did
so because they expected that the contributions would support my campaign
one way or another, and for the most part they expected I would remember
their contributions"). Under those circumstances, the corruptive potential
of the private donation is not meaningfully less than if the contribution
were made directly to the candidate himself. Although Section 441a(d) does
not entirely prevent such arrangements, it substantially reduces the potential
for circumvention of the caps on contributions to candidates by limiting
the aggregate amounts of money that can be channeled through the parties.3
In asserting that "the FEC failed to identify a single instance in
which a modern political party has corrupted a member of Congress"
(Resp. Br. 33 (emphasis omitted)), respondent apparently means that the
evidence presented to the district court identified no occasion in which
party-coordinated spending was demonstrably used to alter the voting behavior
of a Member of Congress. But nothing in this Court's decisions suggests
that empirical evidence of that nature is necessary in order to sustain
a campaign funding restriction that is premised on an anti-corruption rationale.
Indeed, while the Court in Buckley referred in passing to "the deeply
disturbing examples [of political corruption] surfacing after the 1972 election,"
424 U.S. at 27; see id. at 27 n.28 (explaining that "[t]he Court of
Appeals' opinion in [Buckley] discussed a number of the abuses uncovered
after the 1972 elections"), neither this Court nor the court of appeals
in that case identified any instance in which a legislator's vote was shown
to have been altered by the receipt of large contributions. Rather, the
thrust of the evidence to which the Court alluded was simply that large
campaign contributions by persons having an interest in the outcome of a
government decision would create a significant danger (and a corresponding
public perception) of "improper influence" (Buckley, 424 U.S.
at 27; Nixon v. Shrink Mo. Gov't PAC, 120 S. Ct. 897, 905 (2000)) based
on financial largesse. See Buckley v. Valeo, 519 F.2d 821, 839-840 (D.C.
Cir. 1975).4
B. In emphasizing the supposed dearth of evidence regarding the corruptive
effects of party-coordinated expenditures, respondent altogether ignores
the fact that the FECA has limited party spending for over 25 years. Questions
concerning the corruptive potential of unrestricted party-coordinated spending therefore must necessarily be
resolved on the basis of logical inferences regarding the likely consequences
of a future change in the governing legal regime. Cf. Burson v. Freeman,
504 U.S. 191, 208 (1992) (opinion of Blackmun, J.) ("The fact that
these laws have been in effect for a long period of time also makes it difficult
for the States to put on witnesses who can testify as to what would happen
without them.").5
As our opening brief explains (at 18-19, 49), Congress in establishing limits
on party-coordinated spending has endeavored to strike an appropriate balance
between the prevention of actual or apparent corruption and the desire to
"assur[e] that political parties will continue to have an important
role in federal elections." FEC v. Democratic Senatorial Campaign Comm.,
454 U.S. 27, 41 (1981). That effort is in keeping with this Court's recognition
that "the 'differing structures and purposes' of different entities
'may require different forms of regulation in order to protect the integrity
of the electoral process.'" FEC v. National Right to Work Comm., 459
U.S. 197, 210 (1982) (quoting California Med. Ass'n v. FEC, 453 U.S. 182,
201 (1981)). The constitutional legitimacy of the balance struck by Congress
can scarcely be thought to depend on proof that Section 441a(d) has failed
to achieve its objective.
C. The FECA limits on federal campaign contributions (defined to include
coordinated expenditures) rest on Congress's judgment that donations above
the statutory limits create a sufficient risk of actual or perceived political
corruption to warrant the adoption of a prophylactic rule. In Buckley, this
Court sustained the FECA contribution limits, notwithstanding the Court's
assumption that "most large contributors do not seek improper influence
over a candidate's position or an officeholder's action." 424 U.S.
at 29. The Court explained that it is "difficult to isolate suspect
contributions," and that "Congress was justified in concluding
that the interest in safeguarding against the appearance of impropriety
requires that the opportunity for abuse inherent in the process of raising
large monetary contributions be eliminated." Id. at 30. Neither Buckley
nor this Court's subsequent campaign-finance decisions suggest that the
danger of corruption must be proved separately with respect to each potential
category of donor.
To the contrary, the Court in Buckley upheld the application of the FECA
contribution limits to members of a candidate's immediate family, even though
it was not presented with either record evidence or legislative findings
of corruption by family members. 424 U.S. at 53 n.59. The Court explained
that "[a]lthough the risk of improper influence is somewhat diminished
in the case of large contributions from immediate family members, we cannot
say that the danger is sufficiently reduced to bar Congress from subjecting
family members to the same limitations as nonfamily contributors."
Ibid. Similarly here, since respondent seeks a categorical exemption from
spending limits that have been held valid as applied to individuals and
non-party political committees, it is respondent's burden to demonstrate
that unlimited party-coordinated spending will not create the same potential
for abuse as similar expenditures by non-party donors.6 Respondent cannot
make that showing.
1. The individuals who direct the disbursement of party funds-who are in
many instances themselves Members of Congress responsible to the party's
congressional leadership (see Gov't Br. 33 n.16)-have an obvious and substantial
interest in the voting behavior of legislators within the party. Although
the election to Congress of as many party members as possible is certainly
one of the party's goals (see Resp. Br. 26-27, 34), that goal is subordinate
to the party's ultimate objective of implementing a legislative program.
A Member of Congress who is nominally aligned with a political party, but
who regularly flouts the wishes of the party leadership, is at best an uncertain
asset. There is no reason to believe that the officials charged with allocating
the party's funds would be more willing than other donors to forgo efforts
to utilize coordinated expenditures as a means of influencing legislative
behavior. To the contrary, because party-coordinated expenditures will often
be controlled by a small number of individuals who are intensely interested
in the voting behavior of the party's candidate once elected or re-elected
to office (see Gov't Br. 33 & n.16), the rationale of Buckley is directly
applicable here.7
2. Four Justices in Colorado I concluded that the FECA limits on party expenditures
are unconstitutional even as applied to spending that is in fact coordinated
with a candidate for federal office. See Pet. App. 114a-119a (Kennedy, J.,
joined by Rehnquist, C.J., and Scalia, J., concurring in the judgment and
dissenting in part); id. at 119a-140a (Thomas, J., joined in part by Rehnquist,
C.J., and Scalia, J., concurring in the judgment and dissenting in part);
Gov't Br. 8. Those Justices did not suggest, however, that party committees
are less likely than other donors to use coordinated spending as a means
of influencing the conduct of party members once in office. Justice Kennedy's
concurring and dissenting opinion took the position that political parties
have a particular need to coordinate their campaign spending with their candidates and are therefore
specially burdened by the FECA's limits on coordinated expenditures. See
Pet. App. 114a-115a, 118a. We address that argument at pages 2-7, supra.
The thrust of Justice Thomas's concurring and dissenting opinion was that
because "[t]he 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," the party's achievement of that aim "does not * * * constitute
a subversion of the political process." Id. at 138a (internal quotation
marks omitted). As we explain in our opening brief, however, although party
officials have an undoubted right to seek to influence their members' voting
behavior, the effort to pursue that legitimate objective through financial
largesse poses special risks. Congress's decision to address those risks
through reasonable limits on party-coordinated spending is constitutional.
See Gov't Br. 38 & n.18.
Significantly, respondent makes no effort to defend the theory, articulated
in Justice Thomas's concurring and dissenting opinion in Colorado I, that
a political party has a constitutional right to employ coordinated expenditures
as a means of influencing its members' votes. Respondent relies instead
upon the quite different assertion that party officials will not utilize
coordinated expenditures in that manner, even if all limits on such expenditures
are eliminated. For the reasons set forth above, there is no basis for concluding
that party officials are uniquely reluctant to use coordinated spending
as a means of influencing legislative behavior.
3. Respondent contends that "FECA's extensive reporting and disclosure
requirements," as well as the limits on contributions to party committees,
render limits on party-coordinated expenditures unnecessary. See Resp. Br.
35, 42. Those features of the Act, however, are not unique to political
parties. All political committees must publicly report a broad range of
information regarding income and outlays. See 2 U.S.C. 434. With party committees,
no less than other political committees, "Congress was surely entitled
to conclude that disclosure was only a partial measure, and that contribution
ceilings were a necessary legislative concomitant to deal with the reality
or appearance of corruption." Buckley, 424 U.S. at 28; accord Shrink
Mo., 120 S. Ct. at 908 n.7. And contributions to non-party political committees
are subject to the same FECA limits that apply to contributions to respondent.
See 2 U.S.C. 441a(a)(1)(C) and (2)(C).8
D. Respondent contends (Br. 36-38, 44-45) that the FECA limits on party-coordinated
expenditures cannot be sustained on an anti-corruption rationale because
those limits were enacted for a different reason. Respondent principally
relies (Br. 37) on the plurality's statement in Colorado I that "this
Court's opinions suggest that Congress wrote [Section 441a(d)] 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."
Pet. App. 104a (citing Buckley, 424 U.S. at 57).9 As the dissenting judge
in the court of appeals recognized, however, that statement "is found
in [the Colorado I plurality's] discussion of limits on independent party
expenditures." Id. at 50a n.6 (Seymour, J., dissenting); cf. Shrink
Mo., 120 S. Ct. at 907 (explaining that Colorado I "did not deal with
a government's burden to justify limits on contributions"; rather,
"the issue in question was limits on independent expenditures by political
parties"). The apparent import of the Colorado I plurality's assertion
is that Congress's attempt to limit the independent campaign expenditures
of political parties is most plausibly understood as an effort to reduce
overall campaign spending. But there is no reason to doubt that Congress's
decision to restrict party-coordinated expenditures was motivated (at least
in part) by the same anti-corruption rationale that generally underlies
the FECA contribution limits.10
Indeed, as our opening brief explains (at 27-29), Members of Congress, in
debating a 1973 predecessor to the FECA, expressly advocated the imposition
of limits on contributions by parties to their candidates based on an anti-corruption
rationale. As our opening brief acknowledges (at 28-29 & n.13), the
provisions ultimately enacted in 1974 differed in some respects from those
debated the previous year. Contrary to respondent's contention (Br. 38),
however, those differences in no way undermine the natural inference that
Congress's retention in the enacted bill of limits on party spending reflected
a continuing concern regarding potential corruption of candidates.11
* * * * *
For the reasons stated above, and for those stated in our opening brief,
the judgment of the court of appeals should be reversed.
Respectfully submitted.
LOIS G. LERNER
Acting General Counsel
Federal Election
Commission
SETH P. WAXMAN
Solicitor General
JANUARY 2001
1 Under the FECA, the distinction between independent and coordinated expenditures
turns on whether an expenditure is made "in cooperation, consultation,
or concert, with" the candidate or his agents. 2 U.S.C. 441a(a)(7)(B)(i).
As this Court's decision in Colorado I shows, the general role of party
officials in supporting the party's candidates does not necessarily preclude
the party from acting independently of the candidate with respect to individual
expenditures. Respondent acknowledges (Br. 17) that so-called "soft
money" (see Gov't Br. 32) cannot be spent in coordination with a candidate
for federal office; yet the volume of "soft money" spending by
the two major political parties is very large and growing rapidly. See Party
Fundraising Escalates, FEC News Release at 2 (Jan. 12, 2001) (available
in www.fec.gov) (reporting that from January 1, 1999, through November 27,
2000, "Republicans raised $244.4 million [in soft money], an increase
of 73% over the same period in 1995-96, the last presidential cycle, while
Democrats raised $243 million, a 99% increase"). And while soft money
cannot be used for communications that expressly advocate the election or
defeat of a candidate for federal office, it has frequently been used for
advertisements that focus on the merits of particular federal candidates.
See Mariani v. United States, 212 F.3d 761, 768 & n.4 (3d Cir.) (en
banc), cert. denied, 121 S. Ct. 564 (2000). That pattern of spending indicates
that political parties have in fact successfully engaged in substantial
campaign-related advertising without coordinating with their candidates.
2 Respondent attaches significance to the Federal Election Commission's
statement, in a Federal Register notice, that "coordinated party expenditures
. . . are not contributions." Resp. Br. 10 (emphasis omitted); see
Resp. Br. 32. The import of the Commission's Federal Register statement,
however, was simply that for recordkeeping purposes, a party's coordinated
expenditures in support of its federal candidates must be reported separately
from its direct monetary contributions. See 62 Fed. Reg. 50,712 (1997).
In addition, the FECA distinguishes between party-coordinated expenditures
and party contributions to candidates to the extent of establishing separate
limits for each. See Gov't Br. 5-6 n.3. Those technical distinctions under
the statute and regulations are in no way inconsistent with this Court's
repeated recognition that for constitutional purposes, coordinated expenditures
are regulable on the same terms as direct contributions. That equivalence
is particularly clear with respect to coordinated expenditures, such as
payment of a candidate's bills, that involve no meaningful communication
of the party's own views.
3 The fact that the tally system is not itself unlawful (see Resp. Br. 39-40,
42) does not reduce the force of our argument on this point. To the contrary,
the absence of any legal prohibition on arrangements (like the tally system)
that do not involve definite commitments by the party, but that nevertheless
create a practical danger of circumvention of the FECA contribution limits,
reinforces the propriety of Section 441a(d)'s caps on party-coordinated
expenditures. Nor is there merit to respondent's argument (Br. 42) that
Congress is constitutionally required to broaden the earmarking prohibition
contained in 2 U.S.C. 441a(a)(8) in preference to restricting party-coordinated
spending. An effort to broaden the earmarking ban (e.g., by prohibiting
donors to the party from expressing to party officials their particular
support for individual candidates) could itself raise serious First Amendment
concerns.
4 Much of the evidence on which the court of appeals in Buckley relied indicated
that "[l]arge contributions are intended to, and do, gain access to
the elected official after the campaign for consideration of the contributor's
particular concerns." 519 F.2d at 838; see id. at 839-840 nn.36-38.
The court evidently regarded the purchase of access as an appropriate object
of congressional concern, even in the absence of direct evidence that votes
in Congress or substantive government decisions had been altered in response
to large campaign contributions. Similarly in the instant case, the Commission
introduced substantial evidence that party committees solicit large contributions
to the party through promises to facilitate meetings between donors and
the party's Members of Congress. See, e.g., J.A. 91-93, 96-98.
5 By contrast, the contribution limits at issue in both Buckley and Shrink
Missouri were subjected to constitutional challenge shortly after their
enactment. See Buckley, 424 U.S. at 6-7; Shrink Mo., 120 S. Ct. at 901-902.
It was therefore somewhat more feasible to expect the government in defending
those laws to present evidence indicating that the abuses at which the caps
were directed had actually occurred in the recent past.
6 Respondent contends (Br. 30) that coordinated spending by a political
party in support of its candidates should be regarded as analogous to the
candidate's financial support of his own campaign, which the Court in Buckley
held (see 424 U.S. at 51-54) could not constitutionally be limited. But
if the candidate's immediate family members are treated as sufficiently
distinct from the candidate to permit limitation of their coordinated expenditures,
there is no reason that a different constitutional rule should apply to
party officials.
7 The fact that some Members of Congress are able to transfer surplus campaign
funds to the party (see Resp. Br. 34 & n.20) scarcely prevents the use
of party-coordinated expenditures as a means of influencing legislative
behavior. To the contrary, the fact that certain senior legislators may
be the source of party funds is likely to heighten their influence over
those Members of Congress who are supported by party-coordinated expenditures.
8 Respondent also contends that party-coordinated expenditures in support
of congressional candidates are unlikely to cause corruption because "a
party's incumbent members of Congress * * * are unlikely to be pushed around by offers to provide or threats to
withhold campaign support," while non-incumbent candidates "are
not in a position to provide official favors" at the time the expenditures
are made. Resp. Br. 34, 35. Like the arguments discussed in the preceding
paragraph of the text, those contentions if persuasive would suggest that
all FECA limits on contributions to candidates are unnecessary (since every
potential recipient of campaign funding is either an incumbent or a non-incumbent);
but they provide no basis for distinguishing party-coordinated expenditures
from the coordinated spending of other donors. Cf. Buckley, 424 U.S. at
33 ("Since the danger of corruption and the appearance of corruption
apply with equal force to challengers and to incumbents, Congress had ample
justification for imposing the same fundraising constraints upon both.").
There is also no merit to respondent's suggestion (Br. 46) that a more "closely
drawn response [to the danger of corruption] would be to reduce the allowable
size of contributions" to the party. That approach would effectively
reduce the party's ability to engage in independent spending in support
of its candidates for federal office. Far from being "closely drawn,"
a limit on contributions to the party would as a practical matter more significantly
constrain the party's own communications than does Section 441a(d)'s requirement
that expenditures above the statutory limit must be made independently of
the candidate.
9 The Colorado I plurality also stated that "rather 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."
Pet. App. 104a. We agree that the FECA's legislative history reveals no
"special fear of the corruptive influence of political parties"-i.e.,
Congress did not believe that party campaign spending creates a greater
risk of corruption than similar spending by other political committees.
Congress's "desire to enhance what was seen as an important and legitimate
role for political parties in American elections" explains Congress's
decision to permit party-coordinated spending in amounts far greater than
the contribution limits that apply to other donors, but it provides no basis
for exempting parties from all constraints on coordinated spending. Similarly,
the absence of "special" reasons for concern about party expenditures
supports the Colorado I plurality's determination that parties (like other
political committees) have an unrestricted First Amendment right to engage
in independent campaign spending; but it does not suggest that parties are
constitutionally entitled to make unlimited coordinated expenditures.
10 Contrary to respondent's suggestion (Br. 37 & n.23), Congress in
1976 focused specifically upon the spending limits applicable to political
parties before amending the FECA in response to this Court's decision in
Buckley. The Conference Report accompanying the 1976 FECA amendments explains
that Section 441a(d)
allows the political parties to make contributions in kind by spending money
for certain functions to aid the individual candidates who represent the
party during the election process. Thus, but for this subsection [Section
441a(d)], these expenditures would be covered by the contribution limitations
stated in subsections (a)(1) and (a)(2) of this provision.
H.R. Conf. Rep. No. 1057, 94th Cong., 2d Sess. 59 (1976); see Gov't Br.
18-19. The Conference Report thus expressly contemplates the application
of Section 441a(d) to coordinated expenditures amounting to "contributions
in kind." It is surely reasonable to assume that Congress, in continuing
to subject such expenditures to dollar limits (albeit limits much higher
than the caps that apply to other donors), was motivated by the same considerations
that generally support the FECA contribution limits.
There is also no merit to respondent's contention (Br. 36 n.22) that Section
441a(d)'s population-based formula for calculating the party-coordinated
expenditure limit for Senate campaigns in each State (see Gov't Br. 3, 5-6)
"belies an anticorruption motive." The statutory formula reflects
Congress's recognition that the expense of campaigning is generally proportional
to the number of potential voters in a particular election. The formula
preserves a roughly comparable role for political parties in Senate campaigns
in each State. Determining the precise level of appropriate contribution
limits is a legislative judgment that does not raise meaningful constitutional
concerns, see Buckley, 424 U.S. at 30, and Congress is not precluded from
considering other policy objectives in fashioning the legislation, see id.
at 36, 84 n.112.
11 Respondent's reliance (Br. 38) on Garcia v. United States, 469 U.S. 70
(1984), is misplaced. The Court in Garcia recognized that "[t]o permit
[floor] colloquies to alter the clear language of the statute undermines
the intent of Congress." Id. at 78. The instant case, however, involves
no question of statutory interpretation at all, let alone an effort "to
alter the clear language of the statute." Rather, the 1973 legislative
history simply reinforces what would in any event be the most normal inference-i.e.,
that Congress's decision to limit the coordinated expenditures of political
parties was motivated by roughly the same concern that has been held to
support the coordinated spending limits imposed on other persons.
