Nearly a quarter-century ago, the Supreme Court rejected a challenge in Federal Election Commission v. Colorado Federal Republican Campaign Committee to the constitutionality of limits on the amount of money that political parties can spend in coordination with a candidate for office. On Tuesday, Dec. 9, the justices will hear oral arguments in a case, National Republican Senatorial Committee v. Federal Election Commission, asking them to strike down the coordinated party expenditure limits and, if necessary, overrule that 2001 decision.
Defending the limits, the Democratic National Committee argued that a ruling in favor of the challengers “will fundamentally reshape the campaign finance regime.” The group cautioned that a decision holding that a constitutional right to “engage in unlimited coordinated expenditures” would likely also lead to the elimination of any limits on their contributions to a candidate.
The challengers countered that the real negative impact would come if the Supreme Court were to leave its 2001 decision in place. Doing so, it said, “would work a sea change in this Court’s jurisprudence, calling its recent campaign-finance precedents into doubt.”
The dispute dates back to 2022, when four challengers – the National Republican Senatorial Committee (a group focused on electing Republicans to the Senate), the National Republican Congressional Committee (which focuses on electing Republicans to the House), then-Sen. J.D. Vance, and Steve Chabot, then a member of Congress from Ohio – went to federal court. They contended that the coordinated party expenditure limits, imposed by a provision of the Federal Election Campaign Act, violate the First Amendment because the limits prevent the committees from working with the candidates they support to ensure that their advertisements have the same political message. Vance and Chabot also told the court that they wanted to be able to accept funds from the Republican Party and discuss the use of those funds in their campaigns.
Under federal law, the case went immediately to the full U.S. Court of Appeals for the 6th Circuit, which upheld the limits. In an opinion by Chief Judge Jeffrey Sutton, the court of appeals described the challengers’ arguments – that the justices have “tightened the free-speech restrictions on campaign finance regulations in the last two decades” and that “the terrain of political fundraising and spending has changed” – as “fair points.” But, Sutton concluded, “the Supreme Court has not overruled the 2001 Colorado decision or the deferential review it applied to these provisions of the Act. In a hierarchical legal system, we must follow that decision and thus must deny the plaintiffs’ First Amendment … challenges.”
The challengers came to the Supreme Court exactly one year ago, asking the justices to weigh in. In a relatively rare move, the Trump administration agreed that the justices should take up the case and reverse. “The Department of Justice has a longstanding policy of defending challenged federal statutes but has determined that this is the rare case that warrants an exception to that general approach,” U.S. Solicitor General D. John Sauer wrote.
With the FEC no longer defending the 6th Circuit’s decision, the justices in July appointed Roman Martinez, a former clerk to Chief Justice John Roberts and then-Judge Brett Kavanaugh, to do so.
In their brief on the merits, the challengers argued that it is “common ground” that the coordinated expenditure limits “impose at least ‘some burden’ on political parties’ speech and associational rights.” “The point of a political party,” they reasoned, “as opposed to a debating society, is to get its candidates elected,” but the limits make it harder for the party to do so. Therefore, they continued, the limits will pass constitutional muster only if they are intended to advance a “legitimate objective” and they are narrowly tailored – that is, they are specifically designed to achieve only that objective, without being too broad.
The coordinated expenditure limits, the challengers asserted, cannot meet either of these requirements. The Supreme Court has held that “there is ‘only one permissible ground for restricting political speech: the prevention of “quid pro quo” corruption or its appearance’—i.e., ‘the direct exchange of money for official acts.’” But when Congress enacted the coordinated expenditure limits, they wrote, it instead intended to reduce the amount of money in politics.
In any event, they posited, “no one today seriously claims that the parties are trying to bribe their candidates with campaign contributions.” And to the extent that the FEC argued in the lower court that the limits are necessary because “a donor will launder his contributions to a candidate through the party in exchange for official action,” they wrote, the Supreme Court has already rejected that argument: more than a decade ago in McCutcheon v. FEC, the court struck down the overall caps – known as “aggregate limits” – on how much an individual can contribute to candidates for federal office, political parties, and political action committees.
The coordinated expenditure limits also are not narrowly tailored to prevent quid pro quos, the challengers continued. For example, Congress also imposed disclosure requirements, which allow the public to know what contributions the parties receive and what coordinated expenditures they make. “If anything,” the challengers suggested, “the limits here only ‘encourage the movement of money away from entities subject to disclosure’ and toward those less exposed to public scrutiny.”
The challengers also contended that the court’s 2001 ruling does not dictate the outcome of this case, because it has been undermined by a series of decisions since then. That decision, they asserted, “rested on the premise that the FEC had an interest in combatting ‘corruption … understood not only as quid pro quo agreements, but also as undue influence on an officeholder’s judgment.’” But the court later made clear that political speech can only be restricted to prevent “quid pro quo corruption or its appearance,” and that the government must provide “actual evidence” that a limit on spending will reduce this – which was not offered in 2001.
Nevertheless, if the Supreme Court’s 2001 decision would require the justices to uphold the coordinated expenditure limits, the challengers wrote, then the court should overrule it. “That 5-4 aberration was egregiously wrong the day it was decided,” they contended, “and developments both in the law and on the ground in the 24 years since have only further eroded its foundations.”
The Trump administration echoed the challengers’ arguments. It emphasized that the limits at the center of this case “cap[] coordinated party spending at a tiny fraction of the total amount spent on modern campaigns.” As a result, it said, “[o]utside the sliver of coordinated spending permitted by the limit, parties and their candidates may not discuss what campaign issues to bring up, what positions to take on those issues, or when or how to convey those positions to the voters. Parties must instead guess what their candidates would prefer—and so must run a risk of disseminating speech that candidates find unhelpful or even counterproductive.”
The administration also pointed to what it characterized as additional evidence that the coordinated expenditure limit was not intended to combat quid pro quo corruption. “[T]he limit,” it stressed, “varies by office and State even though an expenditure’s corruptive potential does not vary from office to office or State to State. The limit also includes exemptions—for conventions, recounts, get-out-the-vote efforts, and so on—with no apparent connection to an anti-corruption goal.” Moreover, the administration added, “donors today have less incentive to attempt to evade contribution limits, given the availability of robust alternative avenues for political expression, such as Super PACs” – political action committees that can accept unlimited donations and make unlimited independent expenditures.
Martinez, representing the challengers, urged the justices to throw the case out, calling it “a jurisdictional mess.” First, he argued, the case is moot – that is, no longer a live controversy – as a result of the Trump administration’s decision to change the FEC’s position. The challengers must show, he contended, “a real, concrete, and immediate threat of government enforcement” of the law. But in this case, the FEC agrees that the limits violate the Constitution, and President Donald Trump has barred the government from enforcing those limits. “There is no credible risk,” he wrote, “that the FEC will imminently bring an enforcement action against the Republican congressional committees, Vice President Vance, or former Representative Chabot.”
Second, Martinez said, the Republican committees lack a legal right to sue, known as standing, to challenge the limits because those limits do not apply to them – these are understood as only applying to the Republican National Committee, Democratic National Committee, and state party committees. For a similar reason, he continued, the 6th Circuit could not fast-track their challenges, because the law giving the court of appeals that power only applies to claims brought by the FEC, the national political-party committees, and individual voters.
And third, Martinez concluded, the claims by Vance and Chabot cannot move forward because neither man has “any concrete and definite plans to run for any specific federal office—or to accept coordinated expenditures in doing so. On the contrary,” Martinez noted, “Chabot has conceded he will not run again and Vice President Vance has repeatedly disclaimed any concrete plans to do so.”
The Democratic National Committee (as well as the Democratic Senatorial Campaign Committee and the Democratic Congressional Campaign Committee) joined the lawsuit to defend the coordinated expenditure limits. In its brief, it framed the question before the justices as “whether the Constitution guarantees parties an unlimited right—unique among political bodies—to subsidize the campaign expenses of federal candidates. It does not,” the DNC concluded.
The Supreme Court has long regarded coordinated expenditures as “functionally equivalent” to campaign contributions – which, the DNC said, “pose a genuine danger of real and apparent quid pro quo corruption.” The court’s 2001 decision, it wrote, “represents nothing more than a straightforward application of those longstanding core principles.” Nor does anything in the 24 years since the court’s ruling undermines the basis for that decision, the DNC concluded.