No. 00-191

In the Supreme Court of the United States

FEDERAL ELECTION COMMISSION, PETITIONER

v.

COLORADO REPUBLICAN FEDERAL
CAMPAIGN COMMITTEE

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

APPENDIX TO THE
PETITION FOR A WRIT OF CERTIORARI

SETH P. WAXMAN
Solicitor General
Counsel of Record
BARBARA D. UNDERWOOD
Deputy Solicitor General
MALCOLM L. STEWART
Assistant to the Solicitor
General
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

LAWRENCE M. NOBLE
General Counsel
RICHARD B. BADER
Associate General Counsel
DAVID KOLKER
Attorney
Federal Election
Commission
Washington, D.C. 20463



APPENDIX A

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

No. 99-1211

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

[Filed: May 5, 2000]

OPINION

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, 96 S. Ct. 612, 46 L.Ed.2d 659 (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, 105 S. Ct. 1459, 84 L.Ed.2d 455 (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, 96 S. Ct. 612 (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, 101 S. Ct. 2712, 69 L.Ed.2d 567 (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, 96 S. Ct. 612; NCPAC, 470 U.S. at 492, 105 S. Ct. 1459. 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, 96 S. Ct. 612). 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, 116 S. Ct. 2309, 135 L.Ed.2d 795 (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, 116 S. Ct. 2309.2

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, 116 S. Ct. 2309. 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, 116 S. Ct. 2309. As such, the expenditure was entitled to full First Amendment protection under controlling precedent. Id. at 614-15, 116 S. Ct. 2309 (citing NCPAC, 470 U.S. at 497, 105 S. Ct. 1459; Buckley, 424 U.S. at 19- 21, 96 S. Ct. 612).

Having found the provision unconstitutional as applied to this particular independent expenditure, the plurality declined to reach the broader question of whether the First Amendment forbids limits on coordinated expenditures by political parties. Id. at 623, 116 S. Ct. 2309. Instead, the Court remanded the case to the district court for further proceedings, noting that "to our knowledge, this is the first case in the 20-year history of the Party Expenditure Provision to suggest that in-fact coordinated expenditures by political parties are protected from congressional regulation by the First Amendment." Id. at 624, 116 S. Ct. 2309.

On remand, the parties compiled an extensive record, focusing exclusively on the novel constitutional question highlighted in Colorado I. On cross motions for summary judgment, the district court concluded that the FEC had "failed to offer evidence which demonstrates the compelling need for limits on political party coordinated expenditures." Federal Election Comm'n v. Colorado Republican Fed. Campaign Comm., 41 F. Supp. 2d 1197, 1213 (D. Colo. 1999).3 The court therefore declared the Party Expenditure Provision unconstitutional and entered summary judgment in favor of the Party. Id. at 1213-14. This appeal followed.

III.

We review a decision granting summary judgment de novo, applying the same legal standard used by the district court. Mesa v. White, 197 F.3d 1041, 1043 (10th Cir. 1999). In First Amendment cases, "the de novo standard is appropriate . . . for the further reason that . . . an appellate court has an obligation to make an independent examination of the whole record in order to make sure that the judgment does not constitute a forbidden intrusion on the field of free expression." Id. (internal quotation marks and citation omitted). Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c).

Determining the standard of scrutiny appropriate for the constitutional analysis is more complicated than determining our standard of review. In Buckley, the Supreme Court referred generally to "the exacting scrutiny required by the First Amendment," 424 U.S. at 16, 96 S. Ct. 612, and added specifically "that the constitutional guarantee has its fullest and most urgent application precisely to the conduct of campaigns for political office," id. at 15, 96 S. Ct. 612 (internal quotation marks and citation omitted). In Colorado I, the plurality concluded that the government must demonstrate a "compelling" interest to restrict the First Amendment freedoms of candidates and their supporters. 518 U.S. at 609, 116 S. Ct. 2309. Such language suggests "strict scrutiny" of campaign finance regulation in general.

However, the Supreme Court most recently revisited the standard of scrutiny as to campaign contribution limits in particular. See Nixon v. Shrink Mo. Gov't PAC, -- U.S. --, 120 S. Ct. 897, 145 L.Ed.2d 886 (2000). In Shrink Missouri, the Court construed a state statute that limited each person to a contribution of $1000, adjusted for inflation, in support of candidates for various statewide offices. Id. at 901-02. The Court upheld the statute against a First Amendment challenge. In doing so, the Court recognized that the Buckley distinction between (permissible) restrictions on contributions and (impermissible) restrictions on expenditures implies that different types of FECA limits require different levels of justification. Id. at 903-04. Prior to Shrink Missouri, the Court had made this implied distinction explicit in Federal Election Comm'n v. Massachusetts Citizens for Life, Inc., 479 U.S. 238, 259-60, 107 S. Ct. 616, 93 L.Ed.2d 539 (1986) ("We have consistently held that restrictions on contributions require less compelling justification than restrictions on independent spending."). The Shrink Missouri court thus restated the standard of scrutiny for contribution limits as follows:

[U]nder Buckley's standard of scrutiny, a contribution limit involving "significant interference" with associational rights could survive if the Government demonstrated that contribution regulation was "closely drawn" to match a "sufficiently important interest," though the dollar amount of the limit need not be "fine tun[ed]."

120 S. Ct. at 904 (quoting Buckley, 424 U.S. at 25, 30, 96 S. Ct. 612).4

In this case, we must determine whether the FEC can justify § 441a(d)(1)'s limit on coordinated expenditures by political parties. Since FECA treats coordinated expenditures as "contributions," 2 U.S.C. § 441a(a)(7)(B)(i), and the Court has recognized this statutory classification, NCPAC, 470 U.S. at 492, 105 S. Ct. 1459, we apply the foregoing standard to our review of the Party Expenditure Provision.

However, we admit some difficulty in applying this standard to this particular contribution limit. As noted in Shrink Missouri, the Supreme Court has found in general that contribution limits bear "more heavily on the associational right than on freedom to speak." Shrink Mo., 120 S. Ct. at 904. This finding rested in part upon the recognition that contribution limits ordinarily "entail[ ] only a marginal restriction upon the contributor's ability to engage in free communication." Buckley, 424 U.S. at 20, 96 S. Ct. 612. In the case of political parties, though, a limit upon the amount a party can spend in coordination with its candidates certainly entails more than a "marginal restriction" upon the party's free speech. Indeed, in the context of an election, a party speaks in large part through its identified candidates; candidates, in significant measure, speak for their political parties.5 We therefore question whether the contribution/expenditure dichotomy which underlies the Shrink Missouri standard applies with equal force in this case. However, we need not resolve this question definitively because the Party Expenditure Provision fails even under the more deferential standard reformulated in Shrink Missouri.

IV.

The Buckley court recognized the "prevention of corruption and the appearance of corruption" as "constitutionally sufficient justification[s]" for the regulation of campaign contributions. 424 U.S. at 25, 26, 96 S. Ct. 612. "[I]mproper influence" and "opportunities for abuse" go beyond bribery and "extend[ ] to the broader threat from politicians too compliant with the wishes of large contributors." Shrink Mo., 120 S. Ct. at 905.

To the extent that large contributions are given to secure a political quid pro quo from current and potential office holders, the integrity of our system of representative democracy is undermined. . . . Of almost equal concern as the danger of actual quid pro quo arrangements is the impact of the appearance of corruption stemming from public awareness of the opportunities for abuse inherent in a regime of large individual financial contributions. . . . [In enacting contribution limits] Congress could legitimately conclude that the avoidance of the appearance of improper influence "is also critical . . . if confidence in the system of representative Government is not to be eroded to a disastrous extent."

Id. at 26-27, 96 S. Ct. 612 (quoting United States Civil Serv. Comm'n v. National Ass'n of Letter Carriers, 413 U.S. 548, 565, 93 S. Ct. 2880, 37 L.Ed.2d 796 (1973)).

Since Buckley, the Court has stated that "preventing corruption or the appearance of corruption are the only legitimate and compelling government interests thus far identified for restricting campaign finances." NCPAC, 470 U.S. at 496-97, 105 S. Ct. 1459. While corruption or the appearance thereof are constitutionally sufficient justifications, the FEC in this case must show that political parties through their spending authority corrupt or appear to corrupt the electoral process. The opportunity for corruption or its appearance is greatest when the political spending is motivated by economic gain. As discussed below, political parties are diverse entities, one step removed from the candidate, and they exist for noneconomic reasons. Much like an advocacy group, a party functions "to disseminate political ideas, not to amass capital. The resources it has available are not a function of its success in the economic marketplace, but its popularity in the political marketplace." See Massachusetts Citizens for Life, 479 U.S. at 259, 107 S. Ct. 616. Political parties have played a vital role in the American system of government.

[A]stute observers[ ] all agree that the political party is-or should be-central to the American political system. Parties are-or should be-integral parts of all political life, from structuring the reasoning and choice of the electorate, through all facets of campaigns and seemingly all facets of the government, to the very possibility of effective governance in a democracy.

John H. Aldrich, Why Parties: The Origin and Transformation of Political Parties in America 18 (1995). From the birth of this republic into the 21st century, political parties have provided the principal forum for political speech and the principal means of political association. See, e.g., Clinton Rossiter, Parties and Politics in America 1 (1960) (declaring that there is "[n]o America without democracy, no democracy without politics, and no politics without parties. . . ."). Political speech and association, unfettered by unnecessary government interference, are the lifeblood of a free and independent republic. We need only look to the struggling new republics of our time to confirm this principle.

In its FECA enactments, Congress certainly recognized the importance of parties. See H.R. Conf. Rep. No. 94-1057, at 58 (1976), 1976 U.S.C.C.A.N. 946, at 973 (acknowledging that political parties fulfill a "unique role in the political process"), S. Rep. No. 93-689, at 3, 7 (1974), 1974 U.S.C.C.A.N. 5587, at 5589, 5593 (declaring that political parties "serve as a legitimate pooling mechanism for private contributions to candidates in general elections" and concluding that "a vigorous party system is vital to American politics").

The Supreme Court likewise has acknowledged the role of the party. See, e.g., Eu v. San Francisco County Democratic Cent. Comm., 489 U.S. 214, 222-25, 109 S. Ct. 1013, 103 L.Ed.2d 271 (1989), [sic] Tashjian v. Republican Party of Conn., 479 U.S. 208, 214-15, 107 S. Ct. 544, 93 L.Ed.2d 514 (1986); see also Davis v. Bandemer, 478 U.S. 109, 144-45, 106 S. Ct. 2797, 92 L.Ed.2d 85 (1986) (O'Connor, J., concurring in the judgment) ("There can be little doubt that the emergence of a strong and stable two-party system in this country has contributed enormously to sound and effective government. The preservation and health of our political institutions, state and federal, depends to no small extent on the continued vitality of our two-party system, which permits both stability and measured change."). Indeed, all three branches of government, to an important extent, rely on the speech and associational functions of parties to assure the orderly conduct of elections, appointments and governance in general.

In Colorado I, the plurality acknowledged that they "are not aware of any special dangers of corruption associated with political parties" in the context of independent spending. 518 U.S. at 616, 116 S. Ct. 2309. Remand has only confirmed that conclusion for this court in the context of coordinated spending. We are convinced that Shrink Missouri, decided during the pendency of this appeal, does not alter this conclusion. As we discuss later, infra note 9, Shrink Missouri involved a straightforward application of Buckley to uphold counterpart state contribution limits. The Court did not confront the more difficult issue of whether limits on coordinated spending by political parties are consistent with the First Amendment.

The FEC submits essentially three theories on how coordinated spending by political parties corrupts, or creates the appearance of corrupting, our electoral system. Were any of these theories valid, one would have to question why Congress permits any coordinated expenditures by political parties, let alone removes them from the Act's more restrictive limits. At a minimum, Congress has signaled that political parties are different than individuals and other organizations.

A.

The FEC first argues that contributors to a political party-individuals or PACs-can corrupt (or appear to corrupt) the political process through their influence over a party. Under this theory, a contributor gives so much money to a party that the party grows beholden to the donor. The party then exercises its coordinated expenditure authority to either support or neglect those candidates who endorse or eschew the interests of the large contributor. By limiting the spending authority of a political party, the Party Expenditure Provision limits the financial leverage a party can exert on behalf of a generous donor.

To support this theory, the FEC submitted the declaration of former Senator Paul Simon and other evidence concerning meetings between party donors and federal officeholders. In his declaration, Simon describes a meeting of the Democratic Caucus where members discussed an amendment to a bill that was already before the House-Senate Conference Committee. Simon opposed the amendment because it had not passed through the typical committee hearing process. The amendment clearly benefitted one particular corporation, and Simon referenced published reports that this corporation had contributed $1.4 million in the last election cycle to incumbent members of Congress. One of Simon's senior colleagues spoke out in favor of the amendment, saying: "I'm tired of Paul always talking about special interests; we've got to pay attention to who is buttering our bread." R. at 466.

This anecdote, along with the FEC's other evidence, might say something about corporate influence over the legislative process. But this evidence does not demonstrate that parties undermine the integrity of the electoral process. Corporate giving may indeed influence legislators, and Congress recognized this danger in enacting FECA. See, e.g., Federal Election Comm'n v. National Right to Work Comm., 459 U.S. 197, 209-10, 103 S. Ct. 552, 74 L.Ed.2d 364 (1982) ("[FECA] reflects a legislative judgment that the special characteristics of the corporate structure require particularly careful regulation."). Consequently, corporations may not make contributions or expenditures in connection with any federal election, 2 U.S.C. § 441b(a), and PACs organized by such corporations are subject to strict dollar limits, id. § 441a(a)(2).

The FEC may find these limits inadequate to eliminate all corporate sway over members of Congress. If so, this argument should be addressed to Congress, not to this court in this case. We will not validate limits on the protected speech of a political party as a back-door means of stemming corporate involvement in the legislative process. See Massachusetts Citizens for Life, 479 U.S. at 265, 107 S. Ct. 616 ("Where at all possible, government must curtail speech only to the degree necessary to meet the particular problem at hand, and must avoid infringing on speech that does not pose the danger that has prompted regulation.").

To overcome a constitutional challenge, the FEC must demonstrate that a restriction on coordinated expenditures by political parties is "closely drawn" to match important government interests. Shrink Mo., 120 S. Ct. at 904 (internal quotation marks and citation omitted). However, many of the interests identified by the FEC are hardly vindicated by this restriction. For example, the party may become an independent power source, seek contributions from interest groups and attempt to influence members' votes regardless of any limitation on coordinated expenditures. After all, Colorado I confirms that a party may make unlimited expenditures independent of its candidates. Moreover, as the district court observed, many of the activities the FEC wishes to curtail are consistent with our model of representative democracy. Colorado Republican Fed. Campaign Comm., 41 F. Supp.2d at 1210-13.

The FEC insists that we must also consider the corrupting influence of corporate, bank and union money contributed to political parties outside of FECA's limits, so-called "soft money" contributions. In the parlance of campaign finance, FECA regulates only "hard money." Hard money is the common term for the limited and disclosed funds parties raise from individuals and PACs in conformity with the FECA limits outlined in the opening section. Parties may use only hard money to expressly advocate the election or defeat of federal candidates, and corporations, national banks and labor organizations cannot make hard money contributions to political parties. 2 U.S.C. § 441b(a).

FECA does not regulate so-called "soft money" contributions. An individual or group may contribute unlimited amounts of soft money to a political party. However, the party may use soft money only for limited activities, such as electing candidates for state office, see id. § 431(8)(A)(i), or for voter registration and "get-out-the-vote" drives, see id. § 431(8)(B)(xii). Thus, unregulated soft money contributions may not be used to influence a federal campaign, except through the limited party-building activities specifically designated in the statute.

The FEC contends that large soft money donors purchase influence over a political party, and the Party Expenditure Provision must be maintained to ensure that a party does not pressure its candidates to heed this influence. We appreciate the FEC's concern over soft money, but this proceeding does not present the opportunity for soft money reform. In this case, we address only the constitutionality of § 441a(d)(3)'s limit on hard money coordinated expenditures. The FEC has presented no evidence to suggest that parties have illegally utilized soft money for hard money spending. Absent such a showing, we will not allow the appearance of soft money excess to justify a limit on hard money expenditures.6

B.

The FEC next contends that unscrupulous party officials can utilize the party's coordinated spending authority to further their personal interests or those of an unrepresentative party faction. Under this theory, the cap on coordinated expenditures limits the party elite from corrupting (or appearing to corrupt) the electoral process through improper pressure upon its own candidates. The FEC submits evidence that a small group of incumbent officeholders controls coordinated spending decisions, and certain incumbents have utilized this power to support candidates in their home states.

This theory, unlike the first, has the appeal of directly targeting the source of alleged corruption. If party elites corrupt the electoral process, then a limit on coordinated spending directly curtails one means of this alleged corruption. However, the premise of this theory, namely that political parties can corrupt the electoral system by influencing their candidates' positions, gravely misunderstands the role of political parties in our democracy.7

To state the matter with utmost simplicity: political parties, with all their well-known human and structural shortcomings, are the only devices thus far invented by the wit of Western man which with some effectiveness can generate countervailing collective power on behalf of the many individually powerless against the relatively few who are individually-or organizationally- powerful.

Walter Dean Burnham, Critical Elections and the Mainsprings of American Politics 133 (1970). Political parties today represent a broad-based coalition of interests, and there is nothing pernicious about this coalition shaping the views of its candidates. Parties are simply too large and too diverse to be corrupted by any one faction. Evidence in the record demonstrates that the parties' hard money comes from individual donors who give, on average, less than $40. As amici recognized in Colorado I, the old rule of sanitary engineers applies here: the solution to pollution is dilution. Amicus Curiae Br. of the Committee for Party Renewal, Colorado I, 518 U.S. 604, 116 S. Ct. 2309, 135 L.Ed.2d 795 (1996) (No. 95-489).

Even if, as the FEC contends, party leaders subvert the greater will of the rank-and-file membership, we trust the members to replace their leaders. It is true that political parties have been involved in wrongdoing, dating back to the Tammany Hall machine. However, the electoral and litigation processes have always managed to right these wrongs. Given the importance of political parties to the survival of this democracy, we reject the notion that a party's influence over the positions of its candidates constitutes "a subversion of the political process." NCPAC, 470 U.S. at 497, 105 S. Ct. 1459.

C.

Finally, the FEC contends that the Party Expenditure Provision must be upheld to prevent evasion of the Act's other contribution limits. For example, an individual may contribute only $1000 directly to a candidate for federal office, 2 U.S.C. § 441a(a)(1)(A), but may contribute up to $20,000 of hard money to a national political party, id. § 441a(a)(1)(B). The FEC claims that if the coordinated expenditure limit is struck down, individuals will circumvent the $1000 limit by contributing $20,000 to a political party with the expectation that this money be used to support a particular candidate.

The Supreme Court has recognized that certain contribution limits serve to protect the integrity of others. CMA, 453 U.S. at 198-99, 101 S. Ct. 2712; Buckley, 424 U.S. at 38, 96 S. Ct. 612. We agree with the FEC that if an individual used the party as a conduit to channel money to specified candidates, this would certainly threaten the integrity of the individual contribution limit. However, Congress evidently foresaw this avenue of abuse and foreclosed it. The Act provides that individual "contributions which are in any way earmarked or otherwise directed through an intermediary or conduit" to a particular candidate shall be treated as contributions from the original source to the candidate. 2 U.S.C. § 441a(a)(8); see 11 C.F.R. § 110.6(b)(1) (2000) (defining "earmarked" as any "designation, instruction, or encumbrance, whether direct or indirect, express or implied, oral or written, which results in all or any part of a contribution being made to . . . a clearly identified candidate").

Under this provision and its expansive agency interpretation, the FEC certainly has the authority to ensure that individuals do not use political parties to circumvent the Act's other contribution limits. Vigilant enforcement of § 441a(a)(8), rather than a severe abridgement of party speech, is a more appropriate and direct means to safeguard the integrity of the individual contribution limits.8

V.

We recognize that the Supreme Court typically has upheld limits upon political contributions and that FECA treats coordinated expenditures by a political party as contributions. However, in this case, a simple cubbyholing of constitutional values under the labels "contribution" and "expenditure" cheapens the currency. See, e.g., National Ass'n for the Advancement of Colored People v. Button, 371 U.S. 415, 429, 83 S. Ct. 328, 9 L.Ed.2d 405 (1963) (stating that the government "cannot foreclose the existence of constitutional rights by mere labels"). We also recognize that the Buckley court was concerned about the "real or imagined coercive influence of large financial contributions on candidates' positions." Id. at 25, 96 S. Ct. 612. But the Buckley court so defined corruption for the purpose of reviewing limits upon giving and spending by individuals, PACs and candidates. Because the Buckley litigants did not challenge the Party Expenditure Provision on First Amendment grounds, the Court said nothing about the First Amendment implications of restricting party speech on behalf of its candidates. Id. at 58 n. 66, 96 S. Ct. 612. To encompass political parties within the Buckley language on corruption would require a real extension of this precedent. Such an extension is not warranted by the Court's post- Buckley FECA jurisprudence and would betray the historic importance of political parties. See Colorado I, 518 U.S. at 629, 116 S. Ct. 2309 (Kennedy, J., concurring in the judgment and dissenting in part) ("In my view, we should not transplant the reasoning of cases upholding ordinary contribution limitations to a case involving FECA's restrictions on political party spending.").

In sum, we conclude that the Party Expenditure Provision constitutes a "significant interference" with the First Amendment rights of political parties. Buckley, 424 U.S. at 25, 96 S. Ct. 612 (internal quotation marks and citation omitted). This interference effects more than a "marginal restriction upon the [parties'] ability to engage in free communication." Id. at 20, 96 S. Ct. 612. The FEC has not demonstrated on remand that coordinated spending by political parties corrupts, or creates the appearance of corrupting, the electoral process.9 Therefore, § 441a(d)(3)'s limit on party spending is not "closely drawn" to the recognized governmental interest but instead constitutes an "unnecessary abridgment" of First Amendment freedoms.10 Id. at 25, 96 S. Ct. 612.

AFFIRMED.

1 A separate provision, § 441a(d)(2), limits party expenditures in connection with Presidential campaigns. Our analysis and holding apply only to party spending in connection with congressional races.
2 The four Justices who concurred in the judgment also dissented in part, urging the Court to resolve the Party's facial challenge to § 441a(d)(3). Colorado I, 518 U.S. at 626, 116 S. Ct. 2309 (Kennedy, J., concurring in the judgment and dissenting in part); id. at 631, 116 S. Ct. 2309 (Thomas, J., concurring in the judgment and dissenting in part). Chief Justice Rehnquist and Justice Scalia joined Justice Kennedy's opinion in full and Justice Thomas's opinion in part.
3 The plurality in Colorado I noted that neither the parties nor the lower courts had "considered whether Congress would have wanted the Party Expenditure Provision's limitations to stand were they to apply only to coordinated, and not to independent, expenditures." 518 U.S. at 625, 116 S. Ct. 2309. Thus, the plurality directed the parties on remand to brief this "nonconstitutional ground for exempting party coordinated expenditures from FECA limitations." Id. at 625-26, 116 S. Ct. 2309. On remand, the Colorado Party argued that FECA's unconstitutional limit on a party's independent expenditures could not be severed from its limit on a party's coordinated spending. Thus, the Party insisted that § 441a(d)(3) must fail as a matter of statutory construction. The district court disagreed and found that the Party Expenditure Provision, as it applies to coordinated expenditures, remained in effect after Colorado I. 41 F. Supp.2d at 1207. On appeal, the parties raise only the constitutional question.
4 We note that the Court appears internally divided over the appropriate level of scrutiny. Compare Shrink Mo., 120 S. Ct. at 917 (Thomas, J., dissenting) (criticizing "the majority's refusal to apply strict scrutiny to contribution limits"), with id. at 911 (Breyer, J., concurring) (concluding that, in this case, "there is no place for a strong presumption against constitutionality, of the sort often thought to accompany the words 'strict scrutiny'").
5 Notwithstanding the dissent's charge, we do not conclude that parties and their candidates share an identity of interest. We, like the plurality in Colorado I, will not assume any "metaphysical identity" between party and candidate. We simply make the common sense observation that limiting a party's speech through its identified candidates imposes more than a marginal restriction upon that party's First Amendment freedoms.
6 As part of its evidence below, the FEC submitted newspaper articles and editorials concerning soft and hard money. The district court did not make an evidentiary ruling on any individual article, but it did make general comments concerning the admissibility and weight of the articles. See, e.g., Colorado Republican Fed. Campaign Comm., 41 F. Supp.2d at 1200 ("The FEC makes numerous factual assertions, for example, based on reports in newspaper articles. Except as otherwise noted, the discussion which follows simply ignores the mass of irrelevant and/or inadmissible evidence in the record. . . ."). It appears to us that the district court considered all the submitted evidence, while acknowledging evidentiary weaknesses therein. Thus, we also consider the full record before us. We note, however, that media accounts documenting a vague (though visceral) public cynicism about campaign finance prove too little. We should not allow generic public dissatisfaction to support the restriction of political speech. See NCPAC, 470 U.S. at 499-500, 105 S. Ct. 1459 (concluding that "newspaper articles and polls purportedly showing a public perception of corruption" fall "far short" of the required evidence to justify a limitation on the independent expenditures of PACs).
7 The dissent mischaracterizes the object of our criticism. According to the dissent, we accuse Congress of undervaluing the role of the party. This is simply not true. As we noted earlier, supra Part IV, Congress has recognized the party's unique role in the political process. The plurality in Colorado I found that the legislative history of FECA "rather than indicating a special fear of the corruptive influence of political parties . . . demonstrates Congress' general desire to enhance what was seen as an important and legitimate role for political parties in American elections." 518 U.S. at 618, 116 S. Ct. 2309.
The object of our criticism is the FEC. Defying this clear congressional intent, the FEC argued before this court that Congress limited a party's coordinated expenditures out of a fear of corruption. The Supreme Court in this case has suggested otherwise. "[T]his Court's opinions suggest 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." Id. We therefore do not take issue with Congress on this point but rather reject the FEC's post hoc rationalization for this particular provision.
Nevertheless, in construing an enactment of Congress, we must necessarily review some judgments made by the legislative body. But that, of course, is our fundamental duty. See Marbury v. Madison, 1 Cranch 137, 177, 2 L.Ed. 60 (1803) ("It is emphatically the province and duty of the judicial department to say what the law is."). We are mindful of the need for deference to Congress in this particular arena and appreciate the dissent's repeated reminders on this count. However, such deference must ultimately give way to our constitutional obligation.
8 We profess some confusion at the dissent's analysis on this point. The dissent maintains that § 441a(a)(8) operates only as a disclosure provision, and that disclosure alone is a partial measure that may be supplemented with valid contribution ceilings. We agree that disclosure is only a partial measure, but § 441a(a)(8) does not stop at disclosure. All earmarked contributions must be disclosed, and such contributions are then subject to the strict contribution ceilings under the Act. Thus, while § 441a(a)(8) does provide for disclosure, this disclosure then triggers enforcement of the concomitant individual contribution limit upheld in Buckley.
9 The dissent contends that we betray the evidentiary threshold applied in Shrink Missouri. As the dissent accurately recounts, the Shrink Missouri court did caution against too rigorous an evidentiary standard in the context of campaign finance. However, those words of caution must be read in light of the particular challenge before the Court in that case. The state provision before the Court in Shrink Missouri limited each person to a contribution of $1000, adjusted for inflation, in support of candidates for various statewide offices. The Court found that this provision bore a "striking resemblance to the limitations sustained in Buckley." Shrink Mo., 120 S. Ct. at 908. As a consequence, the Court ultimately concluded that "[t]here is no reason in logic or evidence to doubt the sufficiency of Buckley to govern this case." Id. at 910. Since the case "d[id] not present a close call," the Court declined any "further definition" of the government's evidentiary obligation. Id. at 907. However, the Court did indicate that there might be "need for a more extensive evidentiary documentation if petitioners had made any showing of their own to cast doubt on the apparent implications of Buckley's evidence." Id. at 908. In our judgment, the Colorado Party has amply demonstrated that the evidence before the Buckley court is largely inapposite to the constitutionality of this provision. As noted earlier, the Buckley litigants did not challenge the Party Expenditure Provision on First Amendment grounds. Therefore, the Court said nothing about the First Amendment implications of restricting party speech through its candidates.
The Shrink Missouri court essentially incorporated by reference the Buckley evidence, because the disposition amounted to a routine application of the Buckley precedent. As we have demonstrated, this case does not involve a routine application of Buckley. Therefore, it was incumbent upon the FEC to make a more extensive evidentiary showing, which they failed to do.
10 In Colorado I, the plurality indicated that the more restrictive limits upon coordinated spending by a "multicandidate political committee," see § 441a(a)(2), would apply to political parties if the entire Party Expenditure Provision were struck down. 518 U.S. at 625, 116 S. Ct. 2309. Heeding this signal from the Court, the Party on remand challenged all FECA limits to the extent they restrict coordinated spending by political parties. The district court did not strike § 441a(a)(2) as applied to political parties, and we decline to do so as well. The record contains no evidence of a credible threat by the FEC to enforce this provision against political parties. Therefore, this particular issue is not ripe for our resolution. See Renne v. Geary, 501 U.S. 312, 321-22, 111 S. Ct. 2331, 115 L.Ed.2d 288 (1991) (finding no justiciable controversy in a First Amendment political speech case where there was "no factual record of an actual or imminent application" of the challenged provision).

SEYMOUR, Chief Judge, dissenting.

The majority opinion is fundamentally flawed in several aspects. First, the discussion and analysis are permeated with and skewed by the majority's determination to substitute its judgment for that of Congress on quintessentially political matters the Supreme Court has cautioned courts to leave to the legislative process. In so doing, the majority creates a special category for political parties based on its view of their place in American politics, a view at odds with history and with legislation drafted by politicians. The majority supports its decision to accord political parties an exemption from contribution limits Congress believed necessary to protect the integrity of the democratic political process by discounting the type of evidence the Supreme Court has recently held sufficient to substantiate congressional concerns, and by relying instead on evidence the Court has expressly discounted. Accordingly, I respectfully dissent.

I

As originally enacted, the Federal Election Campaign Act (FECA or the Act), 2 U.S.C. §§ 431-455, placed limits on both political contributions and expenditures. The primary interest to be served by these limitations was "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." Buckley v. Valeo, 424 U.S. 1, 25, 96 S. Ct. 612, 46 L.Ed.2d 659 (1976). In Buckley, the Supreme Court was faced with First Amendment challenges to several sections of FECA and drew a distinction for purposes of First Amendment analysis between expenditures and contributions. The Court viewed limits on expenditures as a direct restraint on political speech but characterized contribution limits as entailing only a marginal restriction. Accordingly, the Court upheld the $1000 limit on contributions by individuals and groups to a particular candidate or authorized campaign committee for any single election, id. at 23-35, 96 S. Ct. 612, the $5000 limit on contributions by a political committee to a single candidate, id. at 35-36, 96 S. Ct. 612, and the $25,000 limit on total annual contributions by an individual, id. at 38, 96 S. Ct. 612.

The Court reached a different result with respect to limits on expenditures and held unconstitutional the $1000 limit on independent expenditures for communications advocating the election or defeat of an identified candidate. Id. at 39-51, 96 S. Ct. 612. The Court also struck down the ceiling on a candidate's personal expenditures as unsupported by the governmental interest in preventing actual and apparent corruption, id. at 51-54, 96 S. Ct. 612, and invalidated that section of the Act limiting overall campaign expenditures by candidates for federal office, id. at 54-58, 96 S. Ct. 612.

As indicated by Buckley, FECA regulates two types of expenditures: those that are coordinated with a candidate and those that are made independently. Coordinated expenditures are considered contributions under section 441a(a)(7)(B)(i) and therefore may be subject to limits not permissible with respect to independent expenditures. Prior to the Supreme Court ruling in this case, see Colorado Republican Fed. Campaign Comm. v. Federal Election Comm'n, 518 U.S. 604, 116 S. Ct. 2309, 135 L.Ed.2d 795 (1996), the FEC had construed FECA as requiring that all party expenditures be deemed coordinated.

The instant appeal concerns section 441a(d)(3),11 a provision of the Act not at issue in Buckley, which limits the amount a committee for a political party can spend in connection with the general election campaign of a candidate for federal office. The expenditure at issue was made by the Colorado Republican Federal Campaign Committee for a radio advertisement criticizing an announced Democratic candidate that aired before either party had actually nominated senatorial candidates. In line with the FEC's position, the district court in its original opinion held that the expenditure was coordinated even though no Republican candidate had been nominated at the time. Nonetheless the court ruled that the expenditure did not violate the Act, holding that because it did not constitute express advocacy, it was not made "in connection with" the Republican candidate within the meaning of section 441a(d)(3). See Federal Election Comm'n v. Colorado Republican Fed. Campaign Comm., 839 F. Supp. 1448 (D. Colo. 1993).

On appeal, this court disagreed and held that section 441a(d)(3) applied to coordinated spending that involved a clearly identified candidate and an electioneering message without regard to whether the message constitutes express advocacy. See Federal Election Comm'n v. Colorado Republican Fed. Campaign Comm., 59 F.3d 1015 (10th Cir. 1995). We further held that the limit imposed by the section on coordinated expenditures did not violate the First Amendment.

In a fractured opinion, the Supreme Court vacated and remanded. See Colorado Republican Fed. Campaign Comm., 518 U.S. 604, 116 S. Ct. 2309, 135 L.Ed.2d 795. The plurality opinion of Justice Breyer, joined by Justices O'Connor and Souter, rejected the FEC's argument that all expenditures by political parties must be deemed coordinated, and held that the expenditure here was in fact independent and that a limit on independent expenditures by political parties was unconstitutional under Buckley. In so doing, the plurality emphasized "the fundamental constitutional difference" between independent expenditures and contributions to a candidate to be spent on his campaign. Id. at 614-15, 116 S. Ct. 2309. The plurality held that the government's interest in preventing corruption and the appearance of corruption was not sufficient to justify the restriction on independent spending, observing that while the danger of a political quid pro quo was not eliminated, that danger was alleviated by the absence of prearrangement and coordination. The plurality did not reach the issue of whether FECA's limit on coordinated expenditures by political parties is facially invalid under the First Amendment, pointing out that the issue had not been adequately developed in the lower courts.

Justices Kennedy, Rehnquist, Scalia, and Thomas agreed with the plurality but would have gone further to hold the spending limit invalid as applied to all expenditures, independent and coordinated. Justice Thomas, standing alone, also advocated the abandonment of the analysis in Buckley altogether. Justices Stevens and Ginsburg dissented on the ground that all money spent by a political party should be deemed a contribution to the campaign and that FECA's limits on spending by political parties are constitutional.

On remand, this court determined that factual evidence might be relevant to the issues yet to be determined and sent the case back to the district court for further proceedings. See Federal Election Comm'n v. Colorado Republican Fed. Campaign Comm., 96 F.3d 471 (10th Cir. 1996). The district court held the Act's limits on all spending by political parties facially invalid. See Federal Election Comm'n v. Colorado Republican Fed. Campaign Comm., 41 F. Supp.2d 1197 (D. Colo. 1999). In so doing, the court referred to the material supplied by the FEC in support of the constitutionality of section 441a(d)(3) as lacking "any attention to elementary evidentiary requirements, such as authentication (Fed. R. Evid. 901), or evidentiary limitations, such as the rule against hearsay (Fed. R. Evid. 801)." Id. at 1200. Accordingly, the court "simply ignore[d] the mass of irrelevant and/or inadmissible evidence in the record and recite[d] facts which [it] regard[ed] as having some significance to the questions before the court." Id. at 1200-01. The court held that under the standard established by the Supreme Court, the FEC must demonstrate that the limit serves a compelling interest and is narrowly tailored. Id. at 1208. The court further held that the FEC had failed the test because it had offered no evidence of quid pro quo corruption, stating that mere access does not constitute corruption.

II

While the appeal of this district court ruling was pending, the Supreme Court decided a case addressing contribution limits at the state level that were based on the "proposition that large contributions raise suspicions of influence peddling tending to undermine citizens' confidence 'in the integrity of . . . government.'" Nixon v. Shrink Missouri Gov't PAC, -- U.S. --, --, 120 S. Ct. 897, 902, 145 L.Ed.2d 886 (2000) (quoting Shrink Missouri Gov't PAC v. Adams, 5 F. Supp.2d 734, 738 (E.D. Mo. 1998)). In upholding the contribution limits at issue, the Court addressed several issues relevant to the instant appeal. The Court's analysis thus requires more than the perfunctory nod given it by the majority.

In Shrink Missouri the Court addressed the standard applicable to a claim that a contribution limit violates the First Amendment and reiterated the line it had drawn in Buckley between limits on expenditures and limits on contributions as they impact speech rights. Shrink Missouri, 120 S. Ct. at 903. Significantly, as the majority grudgingly acknowledges, the Court reaffirmed and expanded on Buckley's distinction

between expenditure and contribution limitations in their impacts on the association right. While an expenditure limit "precludes most associations from effectively amplifying the voice of their adherents," (thus interfering with the freedom of the adherents as well as the association) the contribution limits "leave the contributor free to become a member of any political association and to assist personally in the association's efforts on behalf of candidates."

Id. at 903-04 (citations omitted) (emphasis added). The Court reiterated and expressly applied to associational rights its holdings that "'restrictions on contributions require less compelling justification than restrictions on independent spending,'" id. at 904, and that "a contribution limit involving 'significant interference' with associational rights could survive if the Government demonstrated that contribution regulation was 'closely drawn' to match a 'sufficiently important interest,'" id. (citations omitted).

The Court in Shrink Missouri also addressed the governmental interest furthered by contribution limits. The Court reiterated its prior cases holding that preventing corruption and the appearance of corruption are constitutionally sufficient to justify the abridgement of the associational right, pointing out that "[c]orruption is a subversion of the political process. Elected officials are influenced to act contrary to their obligations of office by the prospect of financial gain to themselves or infusions of money into their campaigns." Shrink Missouri, 120 S. Ct. at 905 (quoting Federal Election Comm'n v. National Right to Work Comm., 459 U.S. 197, 208, 103 S. Ct. 552, 74 L.Ed.2d 364 (1982)) (emphasis added).

In speaking of "improper influence" and "opportunities for abuse" in addition to "quid pro quo arrangements," we recognized a concern not confined to bribery of public officials, but extending to the broader threat from politicians too compliant with the wishes of large contributors. These were the obvious points behind our recognition that the Congress could constitutionally address the power of money to "influence government action" in ways less "blatant and specific" than bribery.

Id. (quoting Buckley, 424 U.S. at 28, 96 S. Ct. 612). The Court observed that there is "no serious question" about the legitimacy of the governmental interest in preventing corruption and its appearance. Id.

The Court then addressed and rejected the lower court's conclusion that the state had "fail[ed] to justify the invocation of those interests with empirical evidence of actually corrupt practices or of a perception among Missouri voters that unrestricted contributions must have been exerting a covertly corrosive influence." Id. at 906. The Court's discussion of the requisite evidentiary showing is directly relevant here in view of the majority's conclusion that the FEC has failed to meet its burden with respect to the contribution limit before us. The Court began its analysis by pointing out:

The quantum of empirical evidence needed to satisfy heightened judicial scrutiny of legislative judgments will vary up or down with the novelty and plausibility of the justification raised. Buckley demonstrates that the dangers of large, corrupt contributions and the suspicion that large contributions are corrupt are neither novel nor implausible. The opinion noted that "the deeply disturbing examples surfacing after the 1972 election demonstrate that the problem [of corruption] is not an illusory one."

Id. (quoting Buckley, 424 U.S. at 27 & n. 28, 96 S. Ct. 612). The Court also rejected the argument that the evidentiary showing held sufficient in Buckley had subsequently been supplemented by a new requirement that the government "demonstrate that the recited harms are real, not merely conjectural." Id. at 907. In so doing, the Court distinguished between independent expenditure limits and contribution limits, implying that because limits on contributions are directly related to preventing corruption they may be assumed to be necessary absent convincing evidence to the contrary. Id.

The Court then set out the evidence supporting the contribution limit in that case, which did "not present a close call" requiring further definition of the state's evidentiary obligation. Id. This evidence consisted of an affidavit from a state lawmaker stating that "large contributions have the real potential to buy votes," id. (internal quotation omitted), newspaper reports of large contributions, and anecdotal evidence, as well as a statewide vote indicating a public perception that limits were necessary. Id. at 907-08. The Court acknowledged that more extensive documentation might be needed if the state had made a showing

to cast doubt on the apparent implications of Buckley's evidence and the record here, but the closest respondents come to challenging these conclusions is their invocation of academic studies said to indicate that large contributions to public officials or candidates do not actually result in changes in candidates' positions. . . . Given the conflict among these publications, and the absence of any reason to think that public perception has been influenced by the studies cited by respondents, there is little reason to doubt that sometimes large contributions will work actual corruption of our political system, and no reason to question the existence of a corresponding suspicion among voters.

Id. at 908.

III

An evaluation of the majority's analysis in light of Shrink Missouri reveals that the majority opinion is replete with instances in which Congressional assessments and priorities are criticized and disregarded based on the majority's view of the role political parties should play in the American political process and how best to promote that role. The majority accepts, as it must, that the prevention of both corruption and the appearance of corruption is a legitimate justification for impinging on First Amendment rights. Nonetheless the majority essentially eviscerates that interest by reweighing the balance struck by Congress in order to elevate what the majority believes to be the paramount interest political parties have in making unlimited coordinated contributions.

In my judgment, the majority has crossed the line between assessing the legal merits of a First Amendment challenge and imposing its own political judgments. A court owes "deference to a congressional determination of the need for a prophylactic rule where the evil of potential corruption had long been recognized." Shrink Missouri, 120 S. Ct. at 906 n. 5. "Where a legislature has significantly greater institutional expertise, as, for example, in the field of election regulation, the Court in practice defers to empirical legislative judgments. . . ." Id. at 912 (Breyer, J., concurring). "[T]he legislature understands the problem-the threat to electoral integrity, the need for democratization-better than do we. We should defer to its political judgment that unlimited spending threatens the integrity of the electoral process." Id. at 913.

Rather than deferring, the majority substitutes its view for that of Congress and levels a broad-based attack on the contribution limit at issue. It concludes that the FEC has failed to provide adequate evidentiary support for the limit, that in imposing the limit Congress "gravely misunderst[ood] the role of political parties in our democracy," maj. op. at 1231, that the provision cannot be supported as a necessary component in the overall regulatory scheme, and that the same result can be obtained by the less intrusive reporting requirements of section 441a(a)(8). In so doing, the majority requires an improperly demanding level of proof from the FEC to support a contribution limit the Supreme Court has told us is presumably justified. The majority disregards evidentiary material expressly cited by the Court as sufficient to justify a contribution limit, yet relies on disputed academic articles of the type the Court expressly held insufficient to cast doubt on the validity of the justification. Finally, by immunizing political parties from contribution limits designed to prevent corruption, the majority ignores the Court's directive that courts not "second-guess a legislative determination as to the need for prophylactic measures where corruption is the evil feared." Shrink Missouri, 120 S. Ct. at 906 n. 5.

The premise for the majority's result is its view of the "vital role" that political parties have played in the American system of government. Maj. op. at 1227-28. While there is no doubt that parties play an important role in American politics, there is also ample support for the legislative determination that if left unchecked, parties can exert a corrupting influence on democratic processes or, equally importantly, appear to do so.12

In formulating contribution limits, Congress did in fact recognize the role political parties play in American politics and accorded them special treatment by permitting them to make coordinated expenditures on behalf of their federal candidates far in excess of the limits imposed on others, see 2 U.S.C. § 441a(d)(1), and by permitting adjustment for inflation, see id. § 441a(c). Indeed, the majority cites the legislative history accompanying these provisions as evidence of Congressional recognition that parties play a unique role in the political process. See H.R. CONF. REP. NO. 94-1057, at 58-59 (1976), reprinted in 1976 U.S.C.C.A.N. 946, 973-74. However, other legislative material reveals that Congress wanted to ensure that "party assistance [would] actually represent[ ] the involvement of many voters and not merely the influence of a wealthy few." S. Rep. No. 93-689 (1974), reprinted in 1974 U.S.C.C.A.N. 5587, 5594. The FECA amendments of 1974 were intended to "prevent[ ] evasion of the individual contribution limits by persons funneling large gifts through party committees; each person's donation to party funds used to assist federal candidates under this special provision must not exceed the maximum amount he could give directly to a candidate." Id.

Significantly, these Congressional remarks appear in a discussion of legislation intended to strengthen political parties by promoting the pooling of resources from many small contributors, building coalitions of voters, keeping candidates responsible to the electorate, and increasing party resources for important party operations between elections. See id. at 5593-94. Indeed, Amici Democratic Senatorial Campaign Committee and Democratic Congressional Campaign Committee argue persuasively that during the past twenty years political parties have recovered dramatically from a prolonged period of decline due in large part to the FECA provisions limiting contributions and expenditures, which in turn encourage parties to deploy their resources in other party-building functions that ultimately enhance their role in the political process. Whether one accepts this argument or not, it clearly illuminates the fact that determining which measures suitably balance the nurture of political parties and the prevention of their use as tools of corruption is a matter for the legislative rather than the judicial process.

The majority prefaces its analysis with a discussion voicing reservations on whether the standard set out in Shrink Missouri for assessing contribution limits should apply to political parties. See maj. op. at 12-13. Under that test, a contribution limit survives a First Amendment challenge if the Government demonstrates that it was closely drawn to match a sufficiently important interest. Shrink Missouri, 120 S. Ct. at 904. As an initial matter, the majority is simply mistaken in asserting that the Court in either Buckley or Shrink Missouri analyzed contribution limits more closely when they affected associational rights than when they affected speech rights. To the contrary, as discussed above, after setting out the Buckley analysis in the context of restraints on speech, the Court in Shrink Missouri expressly stated that it had "flagged a similar difference between expenditure and contribution limitations in their impacts on the association right." Id. While recognizing that contribution limits have a greater impact on associational rights than on speech rights, the Court nonetheless reiterated its past holdings that expenditure and contribution limits are governed by differing standards even when they affect associational rights. Id. It is beyond quibble that the Court has drawn a distinction for purposes of First Amendment scrutiny between expenditures and contributions, rather than between associational and speech rights.

Moreover, there is no support in the Constitution, this legislation, or Supreme Court authority for the majority's notion that political parties are entitled to favored treatment when assessing a contribution limit that impacts their associational rights. The majority supports its position by stating that "a party speaks in large part through its identified candidates."13 Maj. op. at 1227. The same can be said, however, of any entity seeking to associate itself with a political candidate. That fact therefore does not serve to set political parties apart from others subject to contribution limits. More importantly, the Supreme Court has expressly rejected the argument that a party and its candidate are identical: "We cannot assume . . . that this is so. Congress chose to treat candidates and their parties quite differently under the Act, for example, by regulating contributions from one to the other." Colorado Republican Comm., 518 U.S. at 623-24, 116 S. Ct. 2309 (citation omitted). The Supreme Court and Congress have thus foreclosed the very assumption made by the majority here.

In holding the contribution limit at issue unconstitutional, the majority requires the FEC to provide evidence in support of Congress' determination that political parties corrupt or appear to corrupt the political process through unlimited contributions.14 The Supreme Court addressed the quantum of evidence required to support this interest in Shrink Missouri, and its discussion there cannot be squared with the majority's treatment of the matter here. The Court pointed out that the necessary evidentiary showing "will vary up or down with the novelty and plausibility of the justification raised," and that "the dangers of large, corrupt contributions and the suspicion that large contributions are corrupt are neither novel nor implausible." Shrink Missouri, 120 S. Ct. at 906. Because the legitimacy of the interest is thus so critical to the evidence required, the relevant inquiry is whether the Court's discussion in Shrink Missouri of the well-recognized dangers of large contributions applies when those contributions are from political parties rather than from other donors.

In Shrink Missouri, the lower court accepted the argument that the State had not justified the invocation of this interest with empirical evidence of actually corrupt practices or the public perception of a corrupting influence. The Supreme Court disagreed and expanded on the dangers flowing from large contributions generally.

In speaking of "improper influence" and "opportunities for abuse" in addition to "quid pro quo arrangements," we recognized a concern not confined to bribery of public officials, but extending to the broader threat from politicians too compliant with the wishes of large contributors. These were the obvious points behind our recognition that the Congress could constitutionally address the power of money "to influence governmental action" in ways less "blatant and specific" than bribery.

Shrink Missouri, 120 S. Ct. at 905 (quoting Buckley, 424 U.S. at 28, 96 S. Ct. 612). The Court pointed out:

Even without the authority of Buckley, there would be no serious question about the legitimacy of the interests claimed, which, after all, underlie bribery and anti-gratuity statutes. While neither law nor morals equate all political contributions, without more, with bribes, we spoke in Buckley of the perception of corruption "inherent in a regime of large individual financial contributions" to candidates for public office, as a source of concern "almost equal" to quid pro quo improbity. The public interest in countering that perception was, indeed, the entire answer to the overbreadth claim raised in the Buckley case. This made perfect sense. Leave the perception of impropriety unanswered, and the cynical assumption that large donors call the tune could jeopardize the willingness of voters to take part in democratic governance. Democracy works "only if the people have faith in those who govern, and that faith is bound to be shattered when high officials and their appointees engage in activities which arouse suspicions of malfeasance and corruption."

Id. at 905-06 (citations omitted).

The FEC contends that these concerns apply equally to large contributions from political parties, arguing that parties can use their ability to funnel large amounts into the campaigns of particular candidates in response to large donations by outside interests, to assist in the evasion of contribution limits placed on individual and political committee contributions, and to promote the personal interests of party leaders, their friends, and party factions. The FEC's position voices long-standing Congressional concerns that have animated the history of efforts to reform federal election financing, many of which were addressed to the evils arising from large contributions to political parties that put the parties in political debt to the donors, debts which were often paid by the parties' candidates. In United States v. International Union UAW-CIO, 352 U.S. 567, 77 S. Ct. 529, 1 L.Ed.2d 563 (1957), for example, the Supreme Court addressed the circumstances giving rise to the Corrupt Practices Act, 18 U.S.C. § 610, which prohibited corporations and labor unions from making contributions or expenditures in connection with federal elections. The Court found the following legislative history indicative of Congressional intent to "protect the political process from what it deemed to be the corroding effect of money employed in elections by aggregated power," id. at 582, 77 S. Ct. 529: 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. It is unquestionably an evil which ought to be dealt with, and dealt with intelligently and effectively.

Id. at 576-77, 77 S. Ct. 529 (quoting remarks by "Senator Robinson, one of the leaders of the Senate"). "We all know that money is the chief source of corruption. We all know that large contributions to political campaigns . . . put the political party under obligation to the large contributors, who demand pay in the way of legislation. . . ." Id. at 577-78, 77 S. Ct. 529 (quoting Senator Bankhead offering 1940 amendments to the Hatch Act restricting contributions to federal elections).

One of the matters upon which I sensed that the public was taking a stand opposite to that of labor leaders was the question of the handling of funds of labor organizations. The public was aroused by many rumors of . . . political contributions to parties and candidates which later were held as clubs over the head of high Federal officials.

Id. at 579, 77 S. Ct. 529 (quoting Congressman Landis, author of 1943 measure extending sections of Corrupt Practices Act to labor unions). These remarks, all of which were made by federal legislators during the efforts to pass earlier campaign finance reform, establish that the dangers from large contributions by political parties are no more novel or implausible than those from large contributions generally.

The Court's analysis of the quantum of evidence presented in Shrink Missouri governs the inquiry here. In concluding that the evidentiary showing in that case was sufficient to justify the contribution limits challenged there, the Court cited an affidavit from a state legislator stating generally that large contributions have the potential to buy votes, and "newspaper accounts of large contributions supporting inferences of impropriety." Shrink Missouri, 120 S. Ct. at 907. Although the majority largely ignores the record before us, it likewise contains affidavits and depositions from those who have been active in federal fund raising activities, both as candidates and as party activists. These materials state that large donors to political parties give with an eye toward obtaining favorable consideration of legislation they deem important or obtaining access to a legislator in order to urge favorable action. See, e.g., Decl. of Robert Hickmott (DNC fundraiser), jt. app. at 452-53; Aff. of Robert Razen (staff person for Senator George Mitchell), id. at 462; Aff. of Former Senator Paul Simon, id. at 466; Decl. of Former Senator Timothy Wirth, id. at 545-46; Dep. of Paul Simon, id. at 636; Dep. of Timothy Wirth, id. at 649, 661. See also Fax from National Republican Senatorial Comm., id. at 626. The record also reveals that although earmarking funds for a particular candidate is illegal, this prohibition is circumvented through "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. See, e.g., Decl. of Leon G. Billings (former Exec. Dir. of Dem. Sen. Campaign Comm.), id. at 382; Decl. of Robert Hickmott (DNC fundraiser), id. at 446-48; Aff. of Paul Simon, id. at 465; Decl. of Timothy Wirth, id. at 543; Dep. of Timothy Wirth, id. at 644-45.

Senators are expected to encourage their major donors, who have maximized their contribution to the candidate, to make contributions to the state or national party, which in turn gives the candidates money for their campaigns. See, e.g., Decl. of Leon G. Billings, id. at 382-83; Decl. of Robert Hickmott, id. at 446-47; Aff. of R. William Johnstone (staff person for Senator Wysche Fowler, Jr.), id. at 457; Decl. of Timothy Wirth, id. at 543; Dep. of Paul Simon, id. at 635. See also Letter from Congressman Wayne Allred, id. at 191. Former Senator Simon candidly admitted, "I have found the process to be corruptive for everyone and, even those of us who go out of our way to make sure money does not influence our decision, we are affected by it." Id. at 630; see also id. at 640 (noting one colleague saying bluntly, "We have to pay attention to who is buttering our bread.").

In addition, the record contains numerous media articles and interviews reporting on episodes in which the inference can be drawn that donations to a party brought about access to that party's candidates and legislators, which in turn furthered the donor's business interests.15 See generally id. at 250-89. Given the Supreme Court's reliance on this very type of evidence in Shrink Missouri, I believe that we are required to credit it here and to hold that the FEC has indeed carried its evidentiary burden to support the legislative judgment that party contribution limits are necessary to prevent corruption and the appearance of corruption.

The majority opinion's several responses to the evidence offered by the FEC all run afoul of Supreme Court authority. First, the majority begins on the wrong foot in relying on a statement by the plurality opinion in Colorado Republican Fed. Campaign Comm. that it was "'not aware of any special dangers of corruption associated with political parties.'" Maj. op. at 1228 (quoting Colorado Republican Fed. Campaign Comm., 518 U.S. at 616, 116 S. Ct. 2309). This remark was not directed to contribution limits on party donations. Rather, it referred to limits on a party's independent expenditures which, unlike contributions, are not deemed to be coordinated and therefore pass constitutional muster due to the absence of prearrangement and coordination. Id. This statement is simply inapposite to coordinated party contributions. Cf., Shrink Missouri, 120 S. Ct. at 907 (making same point about Colorado Republican Fed. Campaign Comm. with respect to government's evidentiary burden).

Next the majority takes issue with Congress' decision to limit party contributions as a means of addressing the ability of corporations and other big donors to influence the legislative process. Here, too, the majority acts contrary to the admonition in Shrink Missouri that courts are not to "second-guess a legislative determination as to the need for prophylactic measures where corruption is the evil feared." 120 S. Ct. at 906 n. 5. "Where a legislature has significantly greater institutional expertise, as, for example, in the field of election regulation, the Court in practice defers to empirical legislative judgments . . ." Id. at 912 (Breyer, J., concurring). Given the legitimacy of the goal of preventing corruption and the undeniable fact that parties funnel funds from donors to candidates when they coordinate expenditures, the Supreme Court has made clear that we are not at liberty to replace Congress' judgment on an effective means for furthering its interest. See Buckley, 424 U.S. at 30, 96 S. Ct. 612 (court "has no scalpel" to probe Congressional choice of means to accomplish necessary end).

The majority also rejects the FEC's argument that limits on party contributions are necessary to prevent unscrupulous party officials from furthering their pet interests, thereby corrupting or appearing to corrupt the legislative process. The majority posits that in adopting this theory, Congress "gravely misunderstands the role of political parties in our democracy." Maj. op. at 1231. As a matter of common sense, it is difficult to credit the bald assertion that politicians do not understand the role political parties play in American politics.6 Moreover, the majority is not at liberty to substitute its judgment for that of Congress on how best to balance the need to promote the role of political parties and to combat its potential for corruption. The majority also views the electoral and litigation processes as the proper means for righting the wrongs perpetrated by corrupt party leaders, again displacing the judgment of Congress on matters uniquely within its province.

Finally, the majority rejects the argument that limits on party expenditures are necessary to prevent evasion of the Act's other contribution limits. The majority believes that enforcement of the disclosure requirements in section 441a(a)(8) is adequate to protect against this problem. To the contrary, the Supreme Court has made it unmistakably clear that the existence of disclosure requirements is not a ground for invalidating contribution limits.

We specifically rejected this notion in Buckley, where we said . . . that "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 inherent in a system permitting unlimited financial contributions, even when the identities of the contributors and the amounts of their contributions are fully disclosed." We understood contribution limits, on the other hand, to "focu[s] precisely on the problem of large campaign contributions-the narrow aspect of political association where the actuality and potential for corruption have been identified-while leaving persons free to engage in independent political expression, to associate actively through volunteering their services, and to assist to a limited but nonetheless substantial extent in supporting candidates and committees with financial resources." There is no reason to view contribution limits any differently today.

Shrink Missouri, 120 S. Ct. at 908 n. 7.

In sum, the majority has substituted a paean to its view of the role of political parties for a properly deferential assessment of the constitutionality of limits on coordinated party contributions under applicable Supreme Court authority. The result the majority reaches simply cannot be reconciled with that authority.

In my view, section 441a(d) is unquestionably valid under the analysis in Shrink Missouri and prior Supreme Court authority. The FEC has amply supported its argument that limits on coordinated expenditures by political parties serve the public interest in preventing both corruption and the appearance of corruption by limiting the leverage parties possess to pay off the political debts owed to large contributors. The FEC has offered evidence that the access purchased by large donations translates into power which distorts the democratic process. Both common sense and experience dictate that the public justifiably views the access obtained by large donations as the unfair opportunity to gain a candidate's support on the basis of financial considerations rather than on policy or belief. The FEC has also supported its contention that the limits at issue are an integral part of FECA's regulatory scheme because they prevent donors from evading the limits on contributions to a candidate by contributing to political parties with the understanding, tacit or otherwise, that the funds will be used for that candidate. Finally, the majority's conclusion that the limit here is not narrowly drawn rings hollow in light of the Court's earlier holding in this case that parties may make independent expenditures on behalf of a candidate.

I see no merit to the assertion that the political atmosphere has changed to the extent that the limits at issue are no longer needed. This evaluation, like so many of the others made by the majority in this case, is to be made by Congress through the legislative process and not by us through judicial fiat. Neither the majority nor the Committee has made a persuasive argument that human nature has changed in the twenty years that have passed since FECA was enacted. To the extent that the political process has in fact improved, FECA has played a major role in the curtailment of abuses. Eliminating an integral part of the Act would allow those abuses to flourish once again. The fact that FECA has accomplished what it was meant to do is hardly a justification for doing away with it. In holding to the contrary, the majority makes a grave error by turning a deaf ear to the voices of history that advise us to learn from our mistakes lest we repeat them.

Accordingly, I dissent.

11 That section provides:

(3) The national committee of a political party, or a State committee of a political party, including any subordinate committee of a State committee, may not make any expenditure in connection with the general election campaign of a candidate for Federal office in a State who is affiliated with such party which exceeds-

(A) in the case of a candidate for election to the office of Senator or of Representative from a State which is entitled to only one Representative, the greater of-

(i) 2 cents multiplied by the voting age population of the State (as certified under subsection (e) of this section); or

(ii) $20,000; and

(B) in the case of a candidate for election to the office of Representative, Delegate, or Resident Commissioner in any other State, $10,000.

2 U.S.C. § 441a(d)(3).

12 Significantly, the majority offers no evidence to the contrary beyond passages from law review articles which contain platitudes about the abstract value of parties in the American political process.

13 In focusing on the speech a party can allegedly only make through its candidate, the majority blurs the very line it wishes to draw between limits on speech and limits on associational rights.

14 In addition, the majority requires that Congress' determination be analyzed in light of the vital role political parties play in that process. As I have discussed in text, Congress was clearly aware of the role parties play in the political process, and it enacted measures aimed at promoting that role as well as strengthening parties in general. The majority thus "double counts" the importance of protecting political parties and improperly substitutes its balancing of the competing values at issue here for that of Congress.

15 Despite the Court's explicit reliance on newspaper articles in Shrink Missouri, the majority here refuses to accord them any weight in addressing the Congressional goal of preventing public perception of corruption. The majority states that "media accounts documenting a vague (though visceral) public cynicism about campaign finance prove too little. We should not allow generic public dissatisfaction to support the restriction of political speech." Maj. op. at 1230 n. 6. In so doing, the majority mischaracterizes and then ignores the significance of the media material here, and fails to accord any weight to the public interest in countering the perception of impropriety, which the Supreme Court has described "as a source of concern 'almost equal' to quid pro quo improbity." Shrink Missouri, 120 S. Ct. at 905-06 (quoting Buckley, 424 U.S. at 30, 96 S. Ct. 612). Significantly, the Supreme Court authority upon which the majority relies was directed to evaluating limits on independent expenditures, which the Court has emphatically distinguished from coordinated expenditures.

[T]he constitutionally significant fact . . . is the lack of coordination between the candidate and the source of the expenditure. This fact prevents us from assuming, absent convincing evidence to the contrary, that a limitation on political parties' independent expenditures is necessary to combat a substantial danger of corruption of the electoral system.

Colorado Republican Campaign Comm., 518 U.S. at 617-18, 116 S. Ct. 2309 (citing Buckley, 424 U.S. at 45-46, 96 S. Ct. 612; Federal Election Comm'n v. National Conservative Political Action Comm., 470 U.S. 480, 498, 105 S. Ct. 1459, 84 L.Ed.2d 455 (1985)). When, as here, this constitutionally significant fact is missing and the expenditure is instead coordinated, the Court has clearly indicated that a substantial danger of corruption may be assumed absent convincing evidence to the contrary. The majority thus errs in placing the burden on the FEC rather than on the Colorado Republican Party, which certainly has not shouldered that burden in this case.

6 The majority apparently concedes the problem in accusing Congress of failing to understand the political process, and attempts to shift the focus of its criticism from Congress to the FEC, asserting that the FEC misunderstands Congressional intent in defending limits on coordinated party spending as a means of combating corruption. See Maj. Op. at 1231 n. 7. The Supreme Court language in Colorado Republican Campaign Comm., upon which the majority relies, however, is found in its discussion of limits on independent party expenditures. See 518 U.S. at 616-18, 116 S. Ct. 2309. As I have previously pointed out, see supra at 1227 n. 5, the Court in that discussion specifically distinguished independent party spending from coordinated spending on the basis of the "constitutionally significant" "lack of coordination." 518 U.S. at 617, 116 S. Ct. 2309. The majority relies on selective quotations and simply ignores the fact that the Supreme Court analyses in which these quotes occur is grounded on the very distinction that renders the majority's reliance invalid.


APPENDIX B

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

No. CIV.A.89 N 1159
FEDERAL ELECTION COMMISSION, PLAINTIFF

v.

COLORADO REPUBLICAN FEDERAL
CAMPAIGN COMMITTEE, DEFENDANT

[Filed: Feb. 18, 1999]

MEMORANDUM OPINION AND ORDER

NOTTINGHAM, District Judge.

This case has come back to the court on remand from the United States Supreme Court and the United States Court of Appeals for the Tenth Circuit. The only claim to have survived the gauntlet is a counterclaim asserted by Defendant Colorado Republican Federal Campaign Committee [hereinafter "Colorado Party"]. This counterclaim asserts a constitutional challenge to a provision of the Federal Election Campaign Act of 1971 [hereinafter "FECA"], codified, as amended, at 2 U.S.C.A. §§ 431-456 (West 1997 & Supp. 1998). The provision at issue, which the Supreme Court labeled for convenient reference as "the Party Expenditure Provision," 16 places limits on the amount of money which committees of political parties may expend "in connection with the general election campaign of candidates for Federal office." See 2 U.S.C.A. § 441a(d). The matter is now before the court on cross-motions for summary judgment. Jurisdiction is based on 28 U.S.C.A. § 1345 (West 1993).

FACTS

a. Procedural History

Plaintiff Federal Election Commission [hereinafter "FEC"] originally brought this action against the Colorado Party, asking the court to declare: (1) that the disbursement of money which the Colorado Party had made for certain political advertising should have been reported as an "expenditure," as FECA defines that term; and (2) that, had the disbursement been so reported, it would have violated the spending limitations set forth in the Party Expenditure Provision. In 1986, before the Colorado Republican Party had selected its candidate for the senatorial election to take place in the fall of 1986, the Colorado Party bought and aired campaign advertisements attacking Timothy Wirth, the putative candidate of the Democratic Party. The state Democratic Party complained to the FEC. The FEC agreed with the Democratic Party and brought this case.

Relying on previous Supreme Court language and interpretations by the FEC which, to the eye, suggested that political parties were by their nature incapable of making "independent" expenditures on behalf of candidates, this court found, as a matter of law, that the Colorado Party had made a "coordinated"17 expenditure. FEC v. Colorado Republican Fed. Campaign Comm., 839 F.Supp. 1448, 1452-53 (D.Colo.1993) (relying on FEC v. Democratic Senatorial Campaign Comm., 454 U.S. 27, 28 n. 1, 102 S. Ct. 38, 40 n. 1, 70 L.Ed.2d 23 [1981] [hereinafter "DSCC"]; FEC Advisory Opinion 1985-14, 1 Fed. Election Campaign Fin. Guide [CCH] ¶ 5819 [July 18, 1985]; FEC Advisory Opinion 1984-15, 1 Fed. Election Campaign Fin. Guide [CCH] ¶ 5766 [Aug. 16, 1984] ). The court then recognized that even a coordinated expenditure is only subject to the limitations of section 441a(d)(3) if it is made "in connection with" a general election campaign. In accordance with Supreme Court and federal circuits' previous interpretations, the court construed the phrase "in connection with" narrowly, as requiring "express advocacy." Thus, the court concluded that the advertisement aired by the Colorado Party did not constitute express advocacy, was not made "in connection with" a general election campaign, and did not run afoul of section 441a(d)(3). FEC v. Colorado Republican Fed. Campaign Comm., 839 F. Supp. at 1455-57.

The Tenth Circuit reversed. FEC v. Colorado Republican Fed. Campaign Comm., 59 F.3d 1015 (10th Cir. 1995). The court adopted a definition of the phrase "in connection with" broader than the one used by this court. The Tenth Circuit's definition focused on whether the advertisement contained an "electioneering message" and targeted a clearly identifiable candidate. Id. at 1023. The Colorado Party's advertisement, according to the Tenth Circuit, contained such a message and identified Timothy Wirth as its focus. Id.

The Supreme Court vacated the Tenth Circuit's opinion and remanded the case. The Court rejected the assumption made by both courts below-that political parties were, by definition, only able to make coordinated expenditures-and found, as matter of fact, that the expenditure in this case was an independent one. The Court then considered FECA's limitations on independent expenditures by political parties and deemed the limits unconstitutional. Colorado Republican Fed. Campaign Comm. v. FEC, 518 U.S. at 617-20, 116 S. Ct. 2309, 2317-18, 135 L.Ed.2d 795 (1996) [hereinafter "Colorado I"]. The Court did not resolve the Colorado Party's counterclaim-a facial challenge to the FECA limits on coordinated as well as independent expenditures. Id. at 623-24, 116 S. Ct. at 2319-20.

b. Legal and Factual Background

The provision at issue is section 441a(d), in particular as it applies to congressional elections. The statute provides as follows:

(1) Notwithstanding any other provision of law with respect to limitations on expenditures or limitations on contributions, the national committee of a political party and a State committee of a political party, including any subordinate committee of a State committee, may make expenditures in connection with the general election campaign of candidates for Federal office, subject to the limitations contained in paragraphs (2) and (3) of this subsection.

. . . . .

(3) The national committee of a political party, or a State committee of a political party, including any subordinate committee of a State committee, may not make any expenditure in connection with the general election campaign of a candidate for Federal office in a State who is affiliated with such party which exceeds-

(A) in the case of a candidate for election to the office of Senator, or of Representative from a State which is entitled to only one Representative, the greater of-

(I) 2 cents multiplied by the voting age population of the State (as certified under subsection (e) of this section); or

(ii) $20,000; and

(B) in the case of a candidate for election to the office of Representative, Delegate, or Resident Commissioner in any other State, $10,000.

2 U.S.C.A. § 441a(d).18 As I noted earlier, this provision establishes limitations on expenditures made "in connection with the general election campaign of candidates for Federal office."

Expenditures are divided into two categories: independent and coordinated. Coordinated expenditures are those which are made "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.A. § 441a(a)(7)(B)(I) (West 1997). Party committees work closely with candidates and campaigns in making coordinated expenditures.19 (See FEC Facts ¶ 38; admitted at Colorado Party's Resp. to FEC Facts ¶ 38.)

All other expenditures are independent. In order to make an independent expenditure, a party must be sufficiently distant from a candidate's campaign and a candidate's campaign strategies that it is able to skirt FECA's definition of a "coordinated" expenditure. See Colorado I, 518 U.S. at 614-15, 116 S. Ct. at 2315. Following Colorado I, political parties may engage in unlimited independent expenditures on behalf of congressional candidates. Id. at 615, 116 S. Ct. at 2315.

The Colorado I Court declined, for "prudential" reasons, to consider whether coordinated party expenditures could constitutionally be limited by application of the Party Expenditure Provision. The Court therefore remanded the case for further factual and legal development. Id. at 623-25, 116 S. Ct. at 2319-20. The litigants have seized this opportunity to lard the summary judgment record with voluminous documentation and disputation concerning the admissibility and significance of that documentation. The FEC has been especially prone to supply material without any attention to elementary evidentiary requirements, such as authentication (Fed.R.Evid.901), or evidentiary limitations, such as the rule against hearsay (Fed. R. Evid. 801). The FEC makes numerous factual assertions, for example, based on reports in newspaper articles. Except as otherwise noted, the discussion which follows simply ignores the mass of irrelevant and/or inadmissible evidence in the record and recites facts which the court regards as having some significance to the questions before the court.

The money which flows to political parties is a crucial aspect of the dispute before the court. The term "hard" money or "federal" money means that money which may be raised in accordance with FECA limits, and is the only money which parties may spend on behalf of candidates for federal election. Parties may accept hard money only in limited amounts and from limited sources. The aggregate amounts which individuals may give to federal candidates, and federal and state parties, may not exceed $25,000 per year to permissible recipients. 2 U.S.C.A. § 441a(a)(3). "Multicandidate political committees," most commonly referred to as political action committees or PACs, may give up to $15,000 per year to a national party and $5,000 per year to a state party, and such entities are not subject to an aggregate limit. 2 U.S.C.A. § 441a(a)(2). Except through their PACs, corporations and unions may not contribute money to be used in connection with federal elections. 2 U.S.C.A. § 441b(a).

In contrast to the limitations on the money which may be used in connection with federal elections, "soft" money is a term commonly applied to contributions to political parties which FECA does not regulate as to source or amount. "Soft" money may not be spent in connection with federal elections. It may, however, be used for non-federal-election activity, such as "get out the vote" campaigns, issue advocacy, and elections for state office.

In the labyrinth of federal election regulation, both types of money, hard and soft, may flow in all directions. Soft money and hard money may be exchanged. Various state parties have traded soft dollars for hard dollars, and state parties have made similar trades with national party committees.20 In addition, national party committees transfer hard monies to state and local party committees in accordance with 11 C.F.R. § 110.3(c)(1) (1997).21 (See FEC Facts ¶ 19; admitted at Colorado Party's Resp. to FEC Facts ¶ 19.) National parties may also transfer their own soft money to state parties. The national parties (the RNC, for example) report such activities to the FEC; the Colorado Party reports its non-federal money activity to the Colorado Secretary of State. (See FEC Facts ¶ 20; admitted in pertinent part at Colorado Party's Resp. to FEC Facts ¶ 20.)

In addition to the transfer of money, party committees are permitted to-and do-share or transfer agency authority to other party entities. The transfer of such authority appears to have the same practical effect as the exchange of hard dollars for soft dollars. The transferee committee is then responsible for making expenditures under section 441a(d). (FEC Facts ¶¶ 21-22, 24-27, 34-37; admitted in pertinent part at Colorado Party's Resp. to FEC Facts ¶¶ 21-22, 24-27, 34-37.)

The various party committees keep track of all this by maintaining separate accounts according to the use for which money may be expended. For example, the NRSC has a federal (i.e., hard money) account which it uses to support federal candidates and two non-federal (i.e., soft money) accounts which it uses for party-building activities. In particular, the NRSC focused in 1995 and 1996 on states with active senate races where party-building money would be of assistance. (FEC Facts ¶ 18; admitted in pertinent part at Colorado Party's Resp. to FEC Facts ¶ 18.)

Because political parties do not have money of their own, they must raise funds from contributors. Money to be used for party expenditures on behalf of candidates is "generated through ongoing fund-raising operations that include direct-mail solicitations, telemarketing efforts, party fund raisers, an annual congressional dinner, and the solicitation of individual donors." (Statement of Undisputed Facts and Supporting Exs. ¶ 23, Ex. B [Corrado Report at 20] [filed Jan. 23, 1998] [hereinafter "Colorado Party Facts"]; admitted at Federal Election Commission's Resp. to the Colorado Party's Statement of Undisputed Facts and Supporting Exs. ¶ 23 [filed Feb. 17, 1998] [hereinafter "FEC's Resp. to Colorado Party Facts"].) According to the Colorado Party, the "vast majority of the monies used for coordinated expenditures are generated through contributions of relatively small amounts from individual donors." (Colorado Party Facts ¶ 23, Ex. B [Corrado Report at 20].) The FEC refuses to admit that the "vast" majority of such funds are raised in the manner described. The evidence in the record, however-particularly the testimony of Haley Barbour, RNC Chairman from 1993 to 1997, former Congressman Tony Coehlo, DCCC Chairman from 1981 to 1986, and Jon Heubusch, Executive Director of the NRSC during the 1995-1996 election cycle-demonstrates that at least the majority of hard money received by the parties is in the form of small (i.e., less than $100) contributions from individual contributors. (See Joint Ex. Vols. II, Ex. G [Barbour Dep. at 23 ("[I]n the first couple of years I was Chairman I believe more than 70 percent of all our revenue came in contributions of $100 or less.")], Ex. J [Coehlo Dep. at 24, 36 (recognizing the value of direct mail which became the "major revenue source" based on contributions averaging $35)], Ex. M [Heubusch Dep. at 99] [filed Jan. 23, 1998].) These hard-money contributions overwhelmingly result from direct-mail solicitations at the national level, and from direct-mail and telephone solicitations at the state party level. (Colorado Party Facts ¶ 24; admitted at FEC's Resp. to Colorado Party Facts ¶ 24.)

The FEC offers almost forty factual allegations regarding candidate fund raising for parties. (FEC Facts ¶¶ 95-132.) Some of them are undisputed. With specific reference to the Colorado Party, the parties agree that Republican federal candidates and officeholders are asked to assist in fund raising. This assistance includes their attendance at fund-raising events as a "draw" to other potential attendees, permission to identify the candidates and/or officeholders as co-hosts of fund raisers at which hard and soft money are raised, and signing a direct-mail fund-raising letter. (FEC Facts ¶ 122; admitted at Colorado Party's Resp. to FEC Facts ¶ 122.)

In general, the evidence offered by the FEC indicates that candidates and officeholders raise funds for their parties in disparate ways. Members of Congress are encouraged by their party to transfer excess campaign funds to the party or a committee thereof and to help raise money for the party. (FEC Facts ¶¶ 96-100.) Further, the FEC highlights what is known as a "tally" system, whereby party committees keep track of the Member of Congress who is responsible for contributions to the campaign committees. Some candidates willingly raise money for the party and party committees; others are less committed to the parties' common pursuits, at least with respect to finances. (See, e.g., FEC Facts ¶¶ 96, 97.) Some raise money for the party even when they are not themselves in an election, or when they otherwise have no expectation of receiving funds from the party in return for their efforts. (See FEC Facts ¶¶ 104, 120.) Other Members of Congress raise money for their party and, in turn, request that they receive assistance in the form of coordinated expenditures. (See FEC Facts ¶¶ 125, 126, 130, 131.) Many, although not all, Members of Congress raise money on behalf of the party from contributors who have already given the maximum permissible amount to the individual candidate's campaign. (FEC Facts ¶¶ 133-43.) Where fund raising is done in conjunction with a candidate, and the potential contributor has already contributed the maximum amount directly to the candidate, the contributor is made aware that, although any contribution to the party would not go directly to the candidate, it would indirectly assist the candidate by assisting his or her party. (FEC Facts ¶¶ 103, 115, 132.) Parties also cultivate giving from PACs and encourage giving from PACs based on the performance of competing PACs. (See FEC Facts ¶¶ 83-86, 88-91, 93.)

The evidence offered by the FEC suggests that the parties take into consideration the fund-raising efforts of candidates in deciding allocations of campaign funds. (See FEC Facts ¶¶ 99, 101-03, 116, 118.) The evidence also indicates, however, that 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, (see FEC Facts ¶¶ 106, 109), assuming that a candidate is competent, exercises common sense, and acts professionally, (FEC Facts ¶ 7; admitted at Colorado Party's Resp. to FEC Facts ¶ 7; see also FEC Facts ¶ 9). Maintaining party control over seats is paramount to the parties' pursuits. (See, e.g., FEC Facts ¶¶ 222-223, 225.) Candidates in need of funding do request assistance and attempt to lobby those with control over allocations. (FEC Facts

¶ 106; admitted in pertinent part at Colorado Party's Resp. to FEC Facts ¶ 106.)

The FEC makes numerous factual claims regarding where contributors to the political parties choose to make their donations and what they allegedly gain in return. In particular, the FEC highlights the various party-donor programs and the benefits and access to Members of Congress which a contributor gains by giving at various levels. (FEC Facts ¶¶ 50-65, 68-78, 161-210.) The FEC also suggests that, in exchange for financial support, contributors to party committees expect that party committees will intercede with candidates and officeholders on behalf of large contributors.22 (FEC Facts ¶¶ 242- 81.) The evidence offered also addresses the fund-raising practices by which Members of Congress solicit money and existing donors are recruited to bring others into the donating fold. In some cases, contributors give money directly to a party committee instead of giving to a candidate if, for example, the contributor is a PAC and the candidate does not accept PAC contributions. (FEC Facts ¶ 144.) There is evidence that one reason contributors give to party committees after having given directly to a candidate is to help their candidate indirectly. (FEC Facts ¶¶ 135-37, 139.)

The FEC contends that party committees exert influence over candidates.23 (FEC Facts ¶¶ 211-41.) The FEC's evidence includes newspaper articles alleging that party leaders have suggested withholding campaign funds from candidates if they refuse to adopt a particular policy position. See FEC Facts ¶¶ 234, 238-39; Federal Election Commission's Supplemental Statement of Material Facts Not in Genuine Dispute ¶ 307 [filed Feb. 17, 1998] [hereinafter "FEC Supplemental Facts"].) As with the other instances where the FEC attempts to rely on newspaper reports in support of its factual assertions, however, the court will not accept such evidence as establishing the facts reported therein.

Resting on hundreds of factual allegations and thousands of pages of documentation, the Colorado Party and the FEC filed cross motions for summary judgment. (Mot. for Summ. J. [filed Jan. 23, 1998]; Def./Counter-Pl.'s Mot. for Summ. J. [filed Jan. 23, 1998].) The FEC contends that the Colorado Party has failed to present a justiciable controversy and seeks summary judgment on the grounds of standing and ripeness. (Federal Election Commission's Mem. in Supp. of Its Mot. for Summ. J., Submitted Under Seal at 17-20 [filed Jan. 23, 1998] [hereinafter "FEC's Summ. J. Br."].) At the heart of its argument on the merits, the FEC maintains that the Party Expenditure Provision serves a compelling Government interest and is narrowly tailored to achieve that interest. (Id. at 21-36.) It also maintains that the Party Expenditure Provision is not unconstitutionally vague. (Id. at 36-38.) The Colorado Party maintains that the Party Expenditure Provision severely restricts core First Amendment rights and that the FEC cannot carry its burden of establishing that the limits contained in the provision serve compelling governmental interests. (Mem. in Supp. of the Colorado Party's Mot. for Summ. J. [filed Jan. 23, 1998] [hereinafter "Colorado Party's Summ. J. Br."].)

ANALYSIS

1. Justiciability

a. Standing

In Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S. Ct. 2130, 119 L.Ed.2d 351 (1992), the Supreme Court held that "the irreducible constitutional minimum of standing" contains the following three elements:

First, the plaintiff must have suffered an "injury in fact"-an invasion of a legally-protected interest which is (a) concrete and particularized; and (b) "actual or imminent, not 'conjectural' or 'hypothetical.'" Second, there must be a causal connection between the injury and the conduct complained of-the injury has to be "fairly . . . trace[able] to the challenged action of the defendant[s], and not . . . the result [of] the independent action of some third party not before the court." Third, it must be "likely," as opposed to merely "speculative," that the injury will be "redressed by a favorable decision."

Lujan, 504 U.S. at 560-61, 112 S. Ct. at 2136 (citations omitted); accord Committee to Save the Rio Hondo v. Lucero, 102 F.3d 445, 447 (10th Cir. 1996). Plaintiff bears the burden of proving standing. Lujan, 504 U.S. at 561, 112 S. Ct. at 2136; Gilbert v. Shalala, 45 F.3d 1391, 1394 (10th Cir. 1995). Where a challenge to standing is before the court on a motion for summary judgment, "standing must be supported by specific evidentiary facts and not by mere allegations." Phelps v. Hamilton, 122 F.3d 1309, 1326 (10th Cir. 1997) (citing Lujan, 504 U.S. at 562, 112 S. Ct. at 2137). Here, the FEC questions whether the Colorado Party meets the injury- in-fact element of standing under Lujan.

It is a constitutional certainty that elections will continue to occur. U.S. Const. Art. I, 2, cl. 1; U.S. Const. amend XVII. It is almost as certain that the Colorado Party will have candidates in those elections whom it will want to support by way of coordinated expenditures. Indeed, during the 1996 federal election year, the Colorado Party made a single, large coordinated expenditure on behalf of its successful senatorial candidate, Wayne Allard. This expenditure alone came to within $4,000 of the limit which section 441a(d) imposed on the Colorado Party's coordinated expenditures for the senate race. (FEC Facts ¶ 30; admitted in part and denied in part at Colorado Party's Resp. to FEC Facts ¶ 30.) Donald K. Bain, erstwhile chairman of the Colorado Party, testified that the Colorado Party "was, is, and for the foreseeable future will be ready, willing, and able to spend more [on coordinated expenditures than FECA permits]." (Colorado Party Exs. Vol. III, Ex. P [Bain Aff. ¶ 3] [filed Jan. 23, 1998] [hereinafter "Colo. Exs. Vol. III"].) Bain further testified that, in the 1996 campaign, the Colorado Party considered a coordinated expenditure in excess of the FECA limits, but ultimately refrained from making the expenditure because of the concern that the FEC would challenge such an expenditure. (Id., Ex. P [Bain Aff. ¶ 4].) The Colorado Party's supposition that the FEC would challenge any coordinated expenditure exceeding the FECA statutory limit is not fanciful, for this case began as an FEC enforcement proceeding under the very section which is at issue now.

In these circumstances, I conclude that the Colorado Party has made a sufficient showing of injury-in-fact. It possesses the intent and the ability to make coordinated expenditures which exceed statutory limitations, and it would confront FEC enforcement action if it did so. Contrary to the FEC's apparent argument, the fact that the Colorado Party receives some money from the RNC or other national party committees for coordinated expenditures does not logically require the conclusion that the Colorado Party is impermissibly attempting to assert standing on behalf of the RNC. See FEC's Summ. J. Br. at 19.) The source of funds which a political party expends for a candidate is simply irrelevant to the question of whether the coordinated expenditure limitation constrains and chills the speech of the party on behalf of its candidates. Similarly, the fact that the Colorado Party may, from time to time, lack hard money which would permit it to exceed the expenditure limitations does not defeat its standing. It may still receive hard funds from national or state party committees, and receipt of such funds would permit it to make expenditures which would exceed the limitations. Accordingly, I conclude that the Colorado Party has standing to challenge the coordinated expenditure limits.

b. Ripeness

Ripeness has been described as "providing a time-bound perspective [ ] on the injury inquiry of standing." DKT Mem'l Fund v. Agency for Int'l Dev., 887 F.2d 275, 298 (D.C. Cir. 1989) (quoting 13 Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3531, at 350 [2d ed. 1990]). The inquiry involves two elements: (1) the fitness of the issues for judicial decision; and (2) the hardship from withholding court consideration. Abbott Labs. v. Gardner, 387 U.S. 136, 148-49, 87 S. Ct. 1507, 1515, 18 L.Ed.2d 681 (1967). Ripeness includes both constitutional elements and prudential elements. Because, however, this case involves First Amendment rights, the prudential elements on standing are lessened. Phelps, 122 F.3d at 1326 (citing Secretary of State of Md. v. Joseph H. Munson Co., 467 U.S. 947, 956, 104 S. Ct. 2839, 2847, 81 L.Ed.2d 786 [1984]; ACORN v. City of Tulsa, Okla., 835 F.2d 735, 738 [10th Cir. 1987]).

The FEC contends that the Colorado Party has failed to demonstrate the existence of a live dispute regarding the actual or threatened application of section 441a(d). (FEC's Summ. J. Br. at 20.) The FEC's position, in light of the history of this case and the Colorado Party's allegations and evidence regarding its campaign practices, limitations, and intentions, is unpersuasive. As noted, this case began as an enforcement action under section 441a(d) for the Colorado Party's exceeding the coordinated expenditure limits imposed thereunder. The Supreme Court ultimately determined that the expenditure at issue was independent and not coordinated, but the reality facing the Colorado Party is that (1) what was believed to be a coordinated expenditure in excess of the limits was challenged in the past, and (2) the Colorado Party can expect to face and FEC challenge in the next election cycle if it makes a coordinated expenditure in contravention of section 441a(d). The Colorado Party need not wait for that to occur before a court considers its challenge to the coordinated expenditure limit. See Secretary of State of Md., 467 U.S. at 956-57, 104 S. Ct. at 2847.

Indeed, the Court in Colorado I noted only that the case may be moot if in fact the Colorado Party wanted to make only independent expenditures. Colorado I, 518 U.S. at 624, 116 S. Ct. at 2320. The Colorado Party has clearly indicated that it is not content with unlimited independent expenditures, has curtailed coordinated expenditures in the past to avoid the specter of an FEC enforcement action, and wants to make coordinated expenditures which exceed what it contends is an impermissible limit on such expenditures. Accordingly, I conclude that the issue is fit for judicial consideration. Further, the Colorado Party would incur substantial hardship if this court were to refuse to hear its challenge until it actually violated the statute and found itself on the other side of an FEC action like the one that began this present judicial odyssey. Cf. Buckley, 424 U.S. at 117-18, 96 S. Ct. at 681-82 (permitting challenge to method of appointing FEC members in anticipation of future rulings and determinations by the FEC). Accordingly, I conclude that the case is ripe for determination.

2. Severability

The Supreme Court directed that, on remand, the lower courts consider whether Congress would have wanted the Party Expenditure Provision to stand were the limits contained therein to apply only to coordinated, and not to independent, expenditures. Colorado I, 518 U.S. at 625-26, 116 S. Ct. at 2320-21. A conclusion that the limits on coordinated party expenditures cannot be severed from the unconstitutional limits on independent party expenditures would permit the court to resolve the Colorado Party's challenge to section 441a(d) as a matter of statutory construction, without reaching the constitutional issue of whether the First Amendment permits legislative limits on coordinated expenditures. See United States v. Locke, 471 U.S. 84, 92 & n. 9, 105 S. Ct. 1785, 1791 & n. 9, 85 L.Ed.2d 64 (1985). The Colorado Party contends that, the congressional attempt to limit a political party's independent expenditures having been found unconstitutional, Congress would never have intended to regulate only a political party's coordinated expenditures. The Colorado Party would thus have the court conclude that the limitation on coordinated expenditures must fall under the weight of the Court's decision in Colorado I concerning independent expenditures.

FECA contains a strong severability provision: "If any provision of this Act, or the application thereof to any person or circumstance, is held invalid, the validity of the remainder of the Act and the application of such provision to other persons and circumstances shall not be affected thereby." 2 U.S.C.A. § 454. Such a clause "evidences a congressional intent to minimize the burdens imposed by a declaration of unconstitutionality." Califano v. Westcott, 443 U.S. 76, 90, 99 S. Ct. 2655, 2664, 61 L.Ed.2d 382 (1979) (construing an identically worded severability clause in the Social Security Act). The inclusion of such a clause "creates a presumption that Congress did not intend the validity of the statute in question to depend on the validity of the constitutionally offensive provision." Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 686, 107 S. Ct. 1476, 1481, 94 L.Ed.2d 661 (1987) (citations omitted). "Unless it is evident that the legislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operative as a law." Buckley v. Valeo, 424 U.S. 1, 108-09, 96 S. Ct. 612, 677, 46 L.Ed.2d 659 (1976) (internal citation and quotation marks omitted). "'[A] court should refrain from invalidating more of the statute than is necessary.'" Alaska Airlines, Inc., 480 U.S. at 684, 107 S. Ct. at 1479 (quoting Regan v. Time, Inc., 468 U.S. 641, 652, 104 S. Ct. 3262, 3268, 82 L.Ed.2d 487 [1984] [plurality opinion] [internal citation and quotations marks omitted] ).

There is no evidence that Congress would have rejected the Party Expenditure Provision as it applies to coordinated expenditures in the absence of a limit on independent expenditures. Nothing necessarily and inherently links limits on independent expenditures with limits on coordinated expenditures. Section 441a(d) can operate to limit the latter without any regulation of the former. Because there is no evidence to the contrary, the presumption created by FECA's strong severability clause compels the conclusion that the Party Expenditure Provision, as it applies to coordinated expenditures, remains in effect. The Colorado Party's motion is denied insofar as the Colorado Party seeks summary judgment on the ground that the unconstitutional independent expenditure limitation cannot be severed from the remainder of the Party Expenditure Provision.

3. The Merits of the Case: Constitutional Challenge to Section 441a(d)

a. Legislative History

The Colorado Party contends that, because the Party Expenditure Provision was enacted for the constitutionally infirm purpose of curtailing what Congress saw as excessive and wasteful campaign spending, it should be held unconstitutional. (Colorado Party's Summ. J. Br. at 19-21.) The Party Expenditure Provision, currently codified as 2 U.S.C.A. § 441a(d), had its origins in the Congress' 1974 federal election legislation. See Federal Election Campaign Act Amendments of 1974, Pub. L. No. 92-225, 86 Stat. 3 (then codified as 18 U.S.C.A. § 608[f] ). Buckley recognized that the primary effect of the expenditure limitations, such as those embodied in what was then 18 U.S.C.A. § 608(f), was to limit the quantity of political speech. Buckley, 424 U.S. at 39, 96 S.Ct. at 644. In the aftermath of Buckley, Congress repealed 18 U.S.C.A. § 608. See Federal Election Campaign Act Amendments of 1976, Pub. L. No. 94-283, 90 Stat. 496. At the same time, Congress enacted a new section, codified as 2 U.S.C.A. § 441a, which incorporated and augmented the Party Expenditure Provision, as it been enacted in 1974. See Federal Election Campaign Act Amendments of 1976, Pub. L. No. 94-283, 90 Stat. 489. The Court has since 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." Colorado I, 518 U.S. at 618, 116 S.Ct. at 2317 (citing Buckley, 424 U.S. at 57, 96 S. Ct. at 653). Congress, however, reenacted the Party Expenditure Provision in light of the principles established in Buckley. Further, Buckley (and the Supreme Court precedents established therefrom) indicates that the primary purpose of FECA is to prevent corruption and the appearance thereof. See Buckley, 424 U.S. at 25-27, 96 S. Ct. at 637-39. Thus, although the origins of the Party Expenditure Provision included a constitutionally impermissible purpose, FECA also sought to control quid pro quo corruption or the appearance thereof. That FECA combined impermissible motives with permissible ones does not compel the conclusion that the Party Expenditure Provision is unconstitutional. Rather, the court must consider coordinated expenditures in light of the constitutional standards for regulating political speech.

b. Coordinated Expenditures by Political Parties

The FEC suggests at the outset that it need only meet an intermediate standard of scrutiny with respect to limits on coordinated party expenditures. In Colorado I, the Supreme Court reviewed previous cases which challenged provisions of FECA on First Amendment grounds. The Court determined that the analysis it had engaged in was "essentially weigh[ing] the First Amendment interest in permitting candidates (and their supporters) to spend money to advance their political views, against a 'compelling' governmental interest in assuring the electoral system's legitimacy, protecting it from the appearance and reality of corruption." Colorado I, 518 U.S. at 609, 116 S. Ct. at 2313 (citing FEC v. Massachusetts Citizens for Life, 479 U.S. 238, 256-63, 107 S. Ct. 616, 626-30, 93 L.Ed.2d 539 [1986]; FEC v. National Conservative Political Action Comm., 470 U.S. 480, 493-501, 105 S. Ct. 1459, 1466-71, 84 L.Ed.2d 455 [1985] [hereinafter "NCPAC "]; California Med. Ass'n v. FEC, 453 U.S. 182, 193-99, 101 S. Ct. 2712, 2720-23, 69 L.Ed.2d 567 [1981]; Buckley, 424 U.S. at 14-23, 96 S.Ct. at 632-37, 46 L.Ed.2d 659). In accordance with the standard established by the Supreme Court, and contrary to the FEC's suggestion, the FEC must demonstrate that the Party Expenditure Provision serves a compelling Government interest and is narrowly tailored. FEC carries a heavy burden of proof.

Section 441a(a) places dollar limits on contributions by persons and by multicandidate political committees. As noted earlier, coordinated expenditures are considered contributions. See 2 U.S.C.A. § 441a(a)(7)(B)(I). The FEC suggests that because coordinated expenditures are considered contributions, and contributions have been permissibly limited by the Supreme Court, this court's inquiry is at an end. (Br. by Counter-Def. Federal Election Commission in Opp'n to Mot. for Summ. J. at 5-9 [filed Feb. 17, 1998].) While it is true that the Court has permitted regulation of contributions, and that coordinated expenditures have been considered, in other circumstances, to be contributions, that does not end this court's inquiry. First, the court is not bound by the Government-selected labels or characterizations, particularly in the context of a First Amendment challenge. Colorado I, 518 U.S. at 627, 116 S. Ct. at 2321 (citing Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 843, 98 S. Ct. 1535, 1544, 56 L.Ed.2d 1 [1978] ["Deference to a legislative finding cannot limit judicial inquiry when First Amendment rights are at stake."] ). Second, the Court has permitted regulation of contributions in the past because the regulations imposed only a "marginal restriction" on the contributor's First Amendment rights. See Colorado I, 518 U.S. at 627, 116 S. Ct. at 2321 (citing Buckley, 424 U.S. at 20, 96 S. Ct. at 635.) Thus, the question before the court is whether limits on coordinated party expenditures minimally restrict parties in engaging in protected First Amendment freedoms and serve a compelling Government interest. The case cannot be resolved solely by convenient reference to established categories.

The only permissible purpose for limitations on campaign expenditures is to prevent corruption or the appearance thereof. "Corruption is a subversion of the political process. Elected officials are influenced to act contrary to their obligations of office by the prospect of financial gain to themselves or infusions of money into their campaigns. The hallmark of corruption is the financial quid pro quo: dollars for political favors." NCPAC, 470 U.S. at 497, 105 S. Ct. at 1468. The FEC's attempt to broaden the definition of corruption to include mere access is unsupported by precedent. In Buckley, the Court recognized that campaign finance reporting requirements serve the purpose of (1) identifying "[t]he sources of a candidate's financial support," and (2) deterring actual corruption and avoiding the appearance of corruption because "[a] public armed with information about a candidate's most generous supporters is better able to detect any post-election special favors that may be given in return." Buckley, 424 U.S. at 67, 96 S. Ct. at 658; cf. McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 356 n. 20, 115 S. Ct. 1511, 1523 n. 20, 131 L.Ed.2d 426 (1995) (recognizing that in United States v. Harriss, 347 U.S. 612, 74 S. Ct. 808, 98 L.Ed. 989 [1954], the Court upheld limited disclosure requirements for lobbyists and stating that "[t]he activities of lobbyists who have direct access to elected representatives, if undisclosed, may well present the appearance of corruption."). Buckley thus recognized that money, in many cases, may grant access to a candidate. It did not, however, conclude that such access is akin to corruption or the appearance of corruption.

The FEC seeks to broaden the definition of corruption to the point that it intersects with the very framework of representative government. Corruption cannot be defined so broadly. Nor can corruption be defined to include whatever it is that political parties and candidates do which the FEC does not like. In order to carry its heavy burden, the FEC must establish that limiting party coordinated expenditures is necessary to avoid corruption or the appearance thereof.

"The First Amendment 'has its fullest and most urgent application' to speech uttered during a campaign for political office." Eu v. San Francisco County Democratic Central Comm., 489 U.S. 214, 223, 109 S. Ct. 1013, 1020, 103 L.Ed.2d 271 (1989). Political parties, and the central activities in which they engage, are a paradigm of the right to freedom of association as guaranteed by the First Amendment. Id., 489 U.S. at 224, 109 S. Ct. at 1020-21. FECA specifically defines a political party as "an association, committee, or organization which nominates a candidate for election to any Federal office whose name appears on the election ballot as the candidate of such association, committee, or organization." 2 U.S.C.A. § 431(16). FECA makes special provisions for political parties, 2 U.S.C.A. § 441a(d), and establishes a special position for them in the statutory framework out of the recognition that "a vigorous party system [is] vital to American politics." S. Rep. 93-689 (1974), reprinted in 1974 U.S.C.C.A.N. 5587, 5593. A political party is an entity which (1) allows the individual voter to associate with others who share similar political beliefs, (2) identifies people who constitute the party, and (3) "select[s] a 'standard bearer who best represents the party's ideologies and preferences.'" Eu, 489 U.S. at 224, 109 S. Ct. at 1020-21 (citing Tashjian v. Republican Party of Conn., 479 U.S. 208, 214, 107 S. Ct. 544, 548, 93 L.Ed.2d 514 [1986] [internal citations and quotations omitted] and quoting Ripon Soc., Inc. v. National Republican Party, 525 F.2d 567, 601 [1975] ). Political parties "can give effect to their views only by selecting and supporting candidates." Colorado I, 518 U.S. at 629, 116 S. Ct. at 2322 (Kennedy, J. concurring in judgment and dissenting in part). Thus, political parties must have a continuing sense of their purpose and existence to succeed. Cf. Anderson v. Celebrezze, 460 U.S. 780, 821, 103 S. Ct. 1564, 1586-87, 75 L.Ed.2d 547 (1983) (Rehnquist, J., dissenting) ("Political parties have, or at least hope to have, a continuing existence, representing particular philosophies. Each party has an interest in finding the best candidate to advance its philosophy in each election.").

Political parties, like PACs, "act in the political arena, . . . seek to elect candidates of their choice, . . . spend money, [and] want some policy outcome." (Colorado Party Facts ¶ 44, Ex. A [Alexander Report] at 17.) According to the Colorado Party, however, parties differ in at least one salient way from PACs. "While the various interest groups (and their PACs) usually have one specific goal or concern, political parties represent an amalgam or coalition of interests and goals; moreover, the purpose of parties is to gain control of government, rather than to pursue single goals, as PACs do." (Colorado Party Facts ¶ 44, Ex. A [Alexander Report at 17]; see also id. ¶ 33, Ex. A [Alexander Report at 24] [discussing the parties' need to be focused on longterm], Ex. E [Alexander Dep. at 111-12, 115] ["The party can't afford to get in a situation that is corrupt or corrupting because the party has to be held accountable, and the party is held accountable through the ballot."].) Parties help to build broad-based coalitions, both in terms of issues and in terms of geography, and parties are held accountable at the ballot box by the voters. (See Colorado Party Facts ¶¶ 45-48.) There is an identity cultivated by the law and borne out in fact between a political party and a candidate who represents that he or she is of that party. Political parties function, in large part, to elect persons who represent the shared political beliefs of their members. Thus, First Amendment rights-the freedom of speech and the freedom of association-are critical to attaining that goal. See Colorado I, 518 U.S. at 629, 116 S. Ct. at 2321 (Kennedy, J., concurring in judgment and dissenting in part).

The Colorado Party describes independent expenditures as "unnatural" because such expenditures "create an artificial separation of the party and its candidate." The need to be independent of a candidate and his or her campaign so as not to run afoul of the requirements for independent expenditures and fall within the regulations on coordinated expenditures dampens the ability to engage in the party's normal functions and imposes additional costs and burdens to promote the party message. (Colorado Party Facts ¶¶ 31-32, Ex. A [Alexander Report at 25], Ex. B [Corrado Report at 35-37], Ex. C [Sorauf/Krasno Report at 44, 46], Ex. F [Bain Dep. at 46-47], Ex. K [Corrado Dep. at 54-56].) For example, independent expenditures do not qualify for the lowest rates on the purchase of broadcasting time, as coordinated expenditures would. (Colorado Party Facts ¶ 32, admitted in pertinent part at FEC's Resp. to Colorado Party Facts ¶ 32.) Because independent expenditures are perceived as often inefficient and counterproductive, it is suggested that the Colorado Party and other entities will not engage in them or will do so with extreme caution. (Colorado Party Facts ¶¶ 36-37, Ex. F [Bain Dep. at 47], Ex. M [Heubusch Dep. at 102, 106]; see also id. ¶ 38, Ex. A [Alexander Report at 24-25].) Coordinated expenditures, on the other hand, provide the candidate and the party the optimum opportunity to communicate their message. (Colorado Party Facts ¶¶ 40-41, 43.) Thus, unlike contributions, communications via coordinated party expenditures implicate core First Amendment rights. The message of the party and the message of the candidate are unified, and the party's dollars cannot be characterized as simply speech by proxy.

The FEC's argument is relatively simple: a powerful party hierarchy, made so because of its ability to grant or withhold funding for unlimited coordinated expenditures, has the ability to exact a quid pro quo from a candidate who needs assistance from the party during his or her campaign. The FEC contends that "the record contains ample evidence . . . that large coordinated expenditures create the opportunity for [quid pro quo] arrangements." (FEC Summ. J. Br. at 24.) The FEC's claim fails. To support its argument, the FEC offers hundreds of factual allegations detailing party fund-raising practices, donor expectations of access, and party control over candidates. The facts which FEC contends support its position, however, do not establish that the limit on party coordinated expenditures is necessary to prevent corruption or the appearance thereof. The FEC must do more than show "the opportunity" for corruption. See Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 664, 114 S. Ct. 2445, 2470, 129 L.Ed.2d 497 (1994) ( "When the Government defends a regulation on speech as a means to . . . prevent anticipated harms, it must do more than simply posit the existence of the disease sought to be cured.") (citation and internal quotation marks omitted); NCPAC, 470 U.S. at 498, 105 S. Ct. at 1469.

The FEC appears to identify two types of "corruption" which are addressed by the Party Expenditure Provision. First, the FEC suggests that contributors to the party committees-individuals and PACs-are so powerful that they could force the party committee to compel a candidate to take a particular position. Second, parties themselves have agendas which they wish to pursue and will support only those candidates who agree to follow that agenda.

With respect to the former type of "corruption," the Colorado Party contends that the FEC can offer no evidence of any quid pro quo corruption where a Member of Congress took an official action in exchange for any contribution to a political party. (Colorado Party Facts ¶ 58.) The FEC denies this assertion, offering what it claims are seven examples of such conduct. (FEC Facts ¶¶ 94, 179, 205, 250, 251, 262, 263.) The Colorado Party objects to all of these examples on various grounds. The FEC's factual assertions suffer numerous flaws. The evidentiary objections are all good ones. In addition, even if the proffered evidence were admissible, it does not support the FEC's position that limiting coordinated party expenditures serves the compelling Government interest of preventing corruption or the appearance thereof. The alleged facts either (1) involve claims of access, which, as the court has stated above, does not constitute corruption, or (2) involve soft money, which may not be used for coordinated expenditures anyway. None of the FEC's examples involve coordinated expenditures. The FEC cannot maintain the constitutionality of the coordinated expenditure provision by pointing to examples of money in the political process which are unrelated to party coordinated expenditures.24

Moreover, because of the limits on hard-money contributions, which are the only funds permissibly used for coordinated party expenditures, I regard contributor-to-party-to-candidate pressure as an unlikely avenue of corruption, based on the facts in the record.25 The FEC attempts to cloud the evidentiary picture before the court by including evidence of soft-money contributions. While soft money may be received in unlimited amounts and from a multitude of sources, there is no suggestion in the evidence that such money is also used for coordinated expenditures. To the extent that the FEC suggests that the court should consider the cumulative impact of hard and soft money contributions from one entity, I reject the suggestion. This case is not about the entirety of the campaign finance system.

Further, that candidates are made aware of who contributes to their campaigns and to the parties, despite the FEC's attempt to cast a sinister pall over such activity, is not, by itself, evidence of corruption or the appearance of corruption. The FECA reporting requirements which indicate the sources and amounts of contributions are designed to insure that campaign finance can be scrutinized. Buckley, 424 U.S. at 60-83, 96 S. Ct. at 654-66. Nothing in the record suggests that this type of fund raising and reporting begets corruption or the appearance of corruption.

With respect to the other type of "corruption" identified by the FEC-party pressure over candidates- despite the FEC's attempts to cast it otherwise, it is not corruption. As Buckley reiterated again and again, the concern with corruption is related to "large individual financial contributions." Buckley, 424 U.S. at 26, 27, 96 S. Ct. at 638-39. Party-coordinated expenditures are not large individual contributions. As required by law and demonstrated by the evidence, the hard-money contributions are not from one or a few individuals. They come from many small contributors. Even the largest contributors are statutorily limited in the amounts they may give. I cannot conclude that party contributions are akin to large individual contributions. The relationship between a party and a Member of Congress who represents that party is wholly different from the relationship between a private individual or corporation and a Member of Congress. Parties exist because of their success in electing representatives of their philosophy to legislative bodies.

The FEC contends that parties exert influence over candidates.26 (FEC Facts ¶¶ 211-41.) The FEC's facts do suggest that the parties and their committees are involved with the candidates and their policy positions. That, however, is the nature of the party-candidate relationship and, again, highlights the paramount First Amendment concerns with respect to limiting coordinated speech.

As discussed above, a political party functions to promote political ideas and policy objectives over time and through elected officials. Given the purpose of political parties in our electoral system, a political party's decision to support a candidate who adheres to the parties' beliefs is not corruption. Conversely, a party's refusal to provide a candidate with electoral funds because the candidate's views are at odds with party positions is not an attempt to exert improper influence. A candidate who does not wish to toe the party line is not excluded from participation in the political process or even in the party process. The FEC offers factual allegations which suggest that one party or the other withheld, or attempted to withhold, campaign funds from a candidate who expressed viewpoints or campaign tactics contrary to those thought preferable by the party. (See, e.g., FEC Facts ¶ 224.) The court regards those as instances of the party and the candidate exercising their First Amendment rights. A party that refuses to fund a candidate who engages in what the party deems as undesirable campaign tactics is not reflecting corruption or the appearance of corruption. Indeed, the evidence offered by the parties suggests that the parties direct their coordinated expenditure dollars to candidates who are most in need, that is, candidates for whom the money could be the difference between winning or losing.

Unable to produce admissible evidence which convinces the court that party expenditures must be limited to prevent corruption, the FEC relies on the "appearance of corruption" to discharge its burden. Specifically, the FEC attempts to rely on the apparent public perception (or, perhaps, misperception) regarding the role of money in politics to establish that un-limited coordinated party expenditures cause the "appearance of corruption." (FEC Facts ¶¶ 292-302.) But, as the evidence reveals, (see Colorado Party Facts ¶¶ 49-53), the public is unaware of the nuances of campaign financing, particularly the role of hard money in coordinated campaign expenditures. If the FEC's position is correct and the public cannot distinguish hard money from soft money and the role that each plays in the system, the proper course of action is not to limit speech by permitting unnecessary and unconstitutional limitations on parties' and candidate's freedoms of speech and association but, rather, to engage in more speech to educate the public. See Linmark Assocs., Inc. v. Township of Willingboro, 431 U.S. 85, 97, 97 S. Ct. 1614, 1620, 52 L.Ed.2d 155 (1977) (citing Whitney v. California, 274 U.S. 357, 377, 47 S. Ct. 641, 649, 71 L.Ed. 1095 [1927] [Brandeis, J. concurring] ). The FEC cannot rely on general public dissatisfaction with parties and politicians and the amount of money in the political process, particularly money which cannot even be used for the expenditures at issue in this case, to support its claim that the party coordinated expenditure limit serves a compelling purpose and is narrowly tailored to accomplish that purpose.

In short, the FEC has failed to offer evidence which demonstrates the compelling need for limits on political party coordinated expenditures. Only by attempting to divert the focus of the case from hard money to soft money and by seeking to broaden the definition of corruption beyond recognizable bounds does the FEC even approach the requisite showing. As Justice Kennedy said in Colorado I:

The problem is not just the absence of a basis in our First Amendment cases for treating the party's spending as contributions. The greater difficulty posed by the statute is its stifling effect on the ability of the party to do what it exists to do. It is fanciful to suppose that limiting party spending of the type at issue here "does not in any way infringe the contributor's freedom to discuss candidates and issues," [Buckley, 424 U.S. at 21, 96 S. Ct. at 635], since it would be impractical and imprudent, to say the least, for a party to support its own candidates without some form of "cooperation" or "consultation." The party's speech, legitimate on its own behalf, cannot be separated from speech on the candidate's behalf without constraining the party in advocating its most essential positions and pursuing its most basic goals. The party's form of organization and the fact that its fate in an election is inextricably intertwined with that of its candidates cannot provide a basis for the restrictions imposed here. See [NCPAC, 470 U.S. at 494- 495, 105 S. Ct. at 1467-68.]

We have a constitutional tradition of political parties and their candidates engaging in joint First Amendment activity; we also have a practical identity of interests between the two entities during an election. Party spending "in cooperation, consultation, or concert with" a candidate therefore is indistinguishable in substance from expenditures by the candidate or his campaign committee. We held in Buckley that the First Amendment does not permit regulation of the latter, see 424 U.S. at 54-59, 96 S. Ct. at 651-54, and it should not permit this regulation of the former. Congress may have authority, consistent with the First Amendment, to restrict undifferentiated political party contributions which satisfy the constitutional criteria we discussed in Buckley, but that type of regulation is not at issue here.

Colorado I, 518 U.S. at 630, 116 S. Ct. 2309, at 2322-23, 135 L.Ed.2d 795 (Kennedy, J. concurring in judgment and dissenting in part). Because the FEC has failed to offer relevant, admissible evidence which suggests that coordinated party expenditures must be limited to prevent corruption or the appearance thereof, I conclude that summary judgment is warranted. Accordingly, the FEC's motion for summary judgment is denied, and the Colorado Party's motion for summary judgment is granted with respect to its constitutional challenge to the Party Expenditure Provision. I therefore do not address the parties' arguments regarding vagueness.

4. Conclusion

Upon the foregoing findings and conclusions, it is therefore

ORDERED as follows:

1. The FEC's motion for summary judgment and to dismiss the amended counterclaim with prejudice is DENIED.

2. The Colorado Party's motion for summary judgment is GRANTED.

3. The parties' joint motion to correct the transcript is GRANTED.

4. The clerk shall forthwith enter judgment declaring that the Party Expenditure Provision, 2 U.S.C.A. § 441a(d) (West 1997), is unconstitutional and cannot be enforced against defendant.




16 Colorado Republican Fed. Campaign Comm. v. FEC, 518 U.S. 604, 611, 116 S. Ct. 2309, 2313, 135 L.Ed.2d 795 (1996).

17 The distinction between "independent" and "coordinated" expenditures is discussed beginning infra at 5.

18 Section 441a(d) specifies that it applies to the national committee of a political party, state committees of a political party, and subcommittees of state parties. Throughout this Memorandum Opinion and Order, the court refers generically and interchangeably to political parties, parties, and party committees because the Colorado Party and the FEC have not suggested any relevant distinction between these entities, and none is apparent to the court.

19 In 1996, the parties made coordinated expenditures as follows: $19,254,219 by the Republican Party committees (national, state, and local) and $15,843,754 by the Democratic Party committees (national, state, and local). (Federal Election Commission's Statement of Material Facts Not in Genuine Dispute, Submitted Under Seal ¶ 8 [filed Jan. 23, 1998] [hereinafter "FEC Facts"]; admitted in pertinent part at Def. Colorado Republican Federal Campaign Committee's Resp. to the FEC's Statement of Material Facts Not in Genuine Dispute, Submitted Under Seal ¶ 8 [filed Feb. 17, 1998] [hereinafter "Colorado Party's Resp. to FEC Facts"].) The three national Republican Party committees are the Republican National Committee ("RNC"), the National Republican Senatorial Committee ("NRSC"), and the National Republican Congressional Committee ("NRCC"). The three national Democratic Party Committees are the Democratic National Committee ("DNC"), the Democratic Senatorial Campaign Committee ("DSCC"), and the Democratic Congressional Campaign Committee ("DCCC").

20 The FEC asserts that the exchanges were typically not dollar-for-dollar exchanges but, rather, reflected a premium for the higher value of hard dollars. (FEC Facts ¶¶ 43-48.) The Colorado Party admits only one exchange: the Texas Republican Party, needing federal (i.e., hard) funds late in the 1996 campaign swapped $35,000 in federal funds for non- federal funds (i.e., soft) with the Colorado Republican Party. (FEC Facts ¶ 43; admitted at Colorado Party's Resp. to FEC Facts ¶ 43.)

With respect to all of the FEC's other money exchange allegations-including those regarding premiums paid for hard money-the Colorado Party admits that such exchanges have been reported but disputes the truth of the matter reported and objects to the consideration of such evidence as "unreliable hearsay." (Colorado Party's Resp. to FEC Facts ¶¶ 44-48.) The FEC claims to be offering the assertions only for the fact that they were reported and not for the truth of the reported material. I do not understand how the mere reporting that a premium was paid for hard dollars is relevant in this case, and I therefore treat such assertions as inadmissible hearsay.

21 For example, in the 1996 senate elections, the RNC transferred $166,068 to the Colorado Party. The Colorado Party used that money as an expenditure coordinated with the campaign of Wayne Allard. The parties dispute whether the Colorado Party would have made this expenditure without such a transfer. (FEC Facts ¶ 31; Colorado Party's Resp. to FEC Facts ¶ 31.) The coordinated expenditure limit for Colorado senate candidates in the 1996 election was almost $171,000. (FEC Facts ¶¶ 29-30; admitted in pertinent part at Colorado Party's Resp. to FEC Facts ¶¶ 29-30.)

22 Of those allegations, fewer than ten even mention the name of a specific Member of Congress or Members of Congress in general. (FEC Facts ¶¶ 242-45, 247-48, 269.) The remainder involve party committee interactions with the White House or other parts of the executive branch. Further, many involve soft-money contributions. As with many other allegations by the FEC, these allegations are simply not relevant to the dispute before the court. Suggesting or arranging for meetings between party contributors and the President or Vice President or any other administration officials has no bearing on the constitutionality of limits on coordinated party expenditures. Even the FEC's allegations which do involve Members of Congress fail to even suggest that coordinated party expenditures result in quid pro quo corruption or the appearance thereof. Further, the fact that Senator Wirth, for example, was asked to meet with large donors to the party with whom he had not previously met, (see FEC Fact ¶ 243), offers no support for the FEC's position. If anything, the evidence suggests that party committees who attempted to arrange meetings for donors with legislators were kept from doing so by staff, where such a meeting would be "inappropriate." (FEC Facts ¶ 242.)

23 The FEC also makes allegations regarding activities by "party leaders" in assisting in state elections. (FEC Facts ¶¶ 283-91.) Those allegations do not, however, involve any Members of Congress. The allegation regarding the use of non-federal money by Republican Party leaders to assist in state elections involves soft money and does not suggest corruption or the appearance thereof. (FEC Facts ¶ 282.) What it does suggest is that parties are not just concerned at electoral success at the federal level, and that furthering parties' agendas at the state level is also an important aspect of parties' goals. The connection between these alleged activities and the corruption which the FEC claims will follow from unlimited party coordinated expenditures is not apparent to the court.

24 Moreover, if the skirting of contribution limits is the issue with which the FEC is concerned (see FEC Summ. J. Br. at 28-32), there are more tailored means of addressing such a concern than limiting the coordinated expenditure limits. See Colorado I, 518 U.S. at 616-17, 116 S. Ct. at 2316.

25 If Congress is concerned about how much hard money parties may receive, it may curtail such limits and do so directly and constitutionally. Cf. Colorado I, 518 U.S. at 617, 116 S. Ct. at 2316 (recognizing, in considering limits on independent party expenditures, that Congress could directly regulate contribution limits rather than indirectly prevent their circumvention by limiting independent expenditures).

26 The FEC, in the factual allegations regarding this subject, combines factual assertions with argument and engages in speculation as to what could occur. Although this appears throughout the FEC's asserted facts, it is particularly acute in this section.