Fec v. Colorado Republican Federal Campaign Committee: a Vote for Campaign Finance Reform? - David C. Clifton

• Publication year: 2002

FEC v. Colorado Republican Federal

Campaign Committee: A Vote for Campaign

Finance Reform?

In FEC v. Colorado Republican Federal Campaign Committee ("Colorado II"),¹ the Supreme Court upheld the constitutionality of coordinated expenditure limitations imposed on political parties by the Federal Election Campaign Act of 1971 ("FECA").² Unlike independent expenditures, which receive strict scrutiny, coordinated expenditures receive a lower level of scrutiny and are therefore more likely to be upheld. Therefore, coordinated expenditure limits on political parties are constitutional.

I. Facts

Colorado II arose from a challenge of the Party Expenditure Provision³ of the Federal Election Campaign Act of 1971 and its amendments. The Party Expenditure Provision exempts political parties from the same type of expenditure limits imposed upon, for instance, individuals and Political Action Committees ("PACs"). The Party Expenditure Provision does, however, provide for limitations on the amount political parties can spend in connection with a candidate's campaign. In 1986 political parties were permitted to spend "the greater of $20,000 or '[two] cents multiplied by the voting age population of the State'" in a Senate campaign.⁴

In January 1986, Timothy Wirth, a United States Democratic Representative from Colorado, announced he would run for the Senate in November. In April 1986, the Colorado Republican Federal Campaign Committee ("Party") purchased a radio advertisement ("Advertisement") attacking Wirth. The Party purchased the Advertisement before the Democratic primary or the general election had been held and before the Party had selected a candidate to oppose Wirth.⁵ The Advertisement stated:

Paid for by the Colorado Republican State Central Committee. Here in Colorado we're used to politicians who let you know where they stand, and I thought we could count on Tim Wirth to do the same. But the last few weeks have been a real eye-opener. I just saw some ads where Tim Wirth said he's for a strong defense and a balanced budget. But according to his record, Tim Wirth voted against every new weapon system in the last five years. And he voted against the balanced budget amendment. Tim Wirth has a right to run for the Senate, but he doesn't have a right to change the facts.⁶

The Colorado Democratic Party ("Democrats") filed a complaint with the Federal Election Commission ("FEC") that was made pursuant to the Party Expenditure Provision of FEC A.⁷ The complaint alleged the Party's Advertisement was an "expenditure in connection with the general election campaign of a candidate for Federal office."⁸ The Democrats argued that because the Party had already allotted $103,000 to the National Republican Senatorial Committee, the money spent on the Advertisement against Wirth caused the Party to exceed the Party Expenditure Provision's limitations on spending in a senate campaign. The FEC judged the complaint to have merit and brought suit against the Party.⁹

The Party defended the suit by arguing section 441a(d) did not apply to the expenditure for the Advertisement because the Advertisement "was not an expenditure 'in connection with' the general election of a candidate for federal office."¹⁰ Further, the Party filed a counterclaim alleging the Party Expenditure Provision's limitations were unconstitutional under the First Amendment's guarantee to freedom of speech.¹¹ The Federal District Court of Colorado first determined that the Advertisement was necessarily a coordinated expenditure because, based on precedent, political parties were "incapable of making independent expenditures."¹² Coordinated expenditures are those "made in coopera- tion with, or with the consent of, a candidate, his agents, or an authorized committee of a candidate."¹³ Conversely, independent expenditures are those "made without the knowledge or permission of a candidate, his agent, or his campaign committee."¹⁴ Although the court determined the expenditure was a coordinated one, the court nonetheless granted summary judgment in favor of the Party, finding "the expenditure for the Advertisement was not 'in connection with' the general election of a candidate for federal office" because the Party had not nominated a candidate at the time the Party purchased the Advertisement.¹⁵ Therefore, the Party Expenditure Provision did not apply to this situation, and the counterclaim of the Party was dismissed as moot.¹⁶ Both sides appealed the district court's ruling.¹⁷

On appeal the FEC argued the Advertisement violated the Party Expenditure Provision, and the Party argued the Party Expenditure Provision was unconstitutional. The United States Court of Appeals for the Tenth Circuit, which agreed with the district court that party expenditures were necessarily coordinated expenditures, also agreed with the FEC and held the Party Expenditure Provision to be applicable and constitutional.¹⁸ In reversing the trial court, the court of appeals stated, "the anti-Wirth publicity was an 'expenditure in connection with' the 1986 Colorado senatorial election because it named both a clearly identifiable candidate and contained an electioneering message."¹⁹ Further, the court held the Party Expenditure Provision was constitutional because it did not ban political speech but merely regulated the quantity of political speech.²⁰

The Party appealed to the Supreme Court and was granted certiorari.²¹ The Supreme Court ruled only on the issue of whether the Party Expenditure Provision's limitations as applied against the Advertisement were unconstitutional.²² The Court ruled that, as applied to the Advertisement, the Party Expenditure Provision's limitations were unconstitutional because the Advertisement was an independent expenditure and not a coordinated expenditure.²³ The district court and court of appeals had incorrectly judged the expenditure to be a coordinated one.²⁴ In reversing the decision of the district court and court of appeals that parties were incapable of making independent expenditures, the Court found that parties were capable of making independent expenditures.²⁵ The Court, however, remanded the issue of whether the Party Expenditure Provision's limitations on coordinated expenditures by political parties were unconstitutional because that issue had not been briefed or considered by the courts below.²⁶

On remand the Federal District Court of Colorado ruled the Party Expenditure Provision's limitations on coordinated expenditures violated the First Amendment and granted the Colorado Republican Party's motion for summary judgment.²⁷ The court determined the purpose of FECA to be the prevention of corruption or the appearance of corruption and ruled the FEC "failed to offer relevant, admissible evidence which suggests that coordinated party expenditures must be limited to prevent corruption or the appearance thereof."²⁸ The FEC again appealed the district court's ruling to the Tenth Circuit Court of Appeals.²⁹

On appeal the court of appeals affirmed the district court's decision.³⁰ The court held "that the Party Expenditure Provision constitutes a 'significant interference' with the First Amendment rights of political parties."³¹ The FEC appealed to the Supreme Court.³²

On June 25, 2001, the Supreme Court granted certiorari and finally decided the case, which began in 1986.³³ The Court reversed the court of appeals and held that the Party Expenditure Provision was constitutional in light of coordinated expenditures made by the parties.³⁴ In making this decision the court stated, "[A] party's coordinated expendi- tures, unlike expenditures truly independent, may be restricted to minimize circumvention of contribution limits. We therefore reject the Party's facial challenge and, accordingly, reverse the judgment of the United States Court of Appeals for the Tenth Circuit."³⁵

II. Legal Background

Congress enacted FECA in 1971 with the goal of eliminating corruption and the appearance of corruption in the political process and of reducing campaign costs.³⁶ Originally, FECA merely required candidates and those political committees spending over $1000 a year influencing elections to disclose their receipts and expenditures in federal elections, and excepting the media, it placed no limitations on expenditures or contributions.³⁷ Congress believed "that timely and complete disclosure of receipts and expenditures would result in the exercise of prudence by candidates and their committees and that excessive expenditures would incur the displeasure of the electorate who would or could demonstrate indignation at the polls."³⁸ Unfortunately, public disclosure of receipts and expenditures did not achieve the desired result of eliminating corruption or the appearance thereof. The failure of FECA to achieve its objectives was magnified by the Watergate scandal.³⁹

In 1974 Congress broadened the scope of FECA by adding amendments that set limits on campaign contributions and independent expenditures.⁴⁰ Independent expenditures were referred to as "sums expended on behalf of a candidate without his authorization, as distinct from contributions of money, goods or services put at the disposal of his campaign organization."⁴¹ There was some concern expressed by members of Congress regarding the constitutionality of the limitations to be placed on independent expenditures.⁴² Nonetheless, Congress determined the independent expenditure limitations "[were] imperative if Congress [was] to enact meaningful limits on direct contributions."⁴³ While Congress was keenly aware of the impact the limitations on independent expenditures would have on the First Amendment, it also felt the governmental interest in ensuring the viability of the electoral process outweighed the constraints placed on freedom of speech.⁴⁴

The limitations on independent expenditures, however, would be struck down two years later. In Buckley v. Valeo,⁴⁵ several political candidates challenged the...