In Colorado Republican Federal Campaign Comm. v. Federal Election Comm'n, 518 U.S. 604 (1996) (Colorado I), we held that spending limits set by the Federal Election Campaign Act were unconstitutional as applied to the Colorado Republican Party's independent expenditures in connection with a senatorial campaign. We remanded for consideration of the party's claim that all limits on expenditures by a political party in connection with congressional campaigns are facially unconstitutional and thus unenforceable even as to spending coordinated with a candidate. Today we reject that facial challenge to the limits on parties' coordinated expenditures.
We first examined the Federal Election Campaign Act of 1971 in Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam), where we held that the Act's limitations on contributions to a candidate's election campaign were generally constitutional, but that limitations on election expenditures were not. Id., at 12-59. Later cases have respected this line between contributing and spending. See, e. g., Nixon v. Shrink Missouri Government PAC, 528 U.S. 377, 386-388 (2000); Colorado I, supra, at 610, 614-615; Federal Election
The simplicity of the distinction is qualified, however, by the Act's provision for a functional, not formal, definition of "contribution," which includes "expenditures made by any person 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. § 441a(a) (7)(B)(i).
The Federal Election Commission (FEC or Commission) originally took the position that any expenditure by a political party in connection with a particular election for federal office was presumed to be coordinated with the party's candidate. See Federal Election Comm'n v. Democratic Senatorial Campaign Comm., 454 U.S. 27, 28-29, n. 1 (1981); Brief for Petitioner 6-7. The Commission thus operated on the assumption that all expenditure limits imposed on political parties were, in essence, contribution limits and therefore constitutional. Brief for Respondent in Colorado I, O. T. 1995, No. 95-489, pp. 28-30. Such limits include 2 U. S. C. § 441a(d)(3), which provides that in elections for the United States Senate, each national or state party committee
Colorado I was an as-applied challenge to § 441a(d)(3) (which we spoke of as the Party Expenditure Provision), occasioned by the Commission's enforcement action against the Colorado Republican Federal Campaign Committee (Party) for exceeding the campaign spending limit through its payments for radio advertisements attacking Democratic Congressman and senatorial candidate Timothy Wirth. 518 U. S., at 612-613. The Party defended in part with the claim that the party expenditure limitations violated the First Amendment, and the principal opinion in Colorado I agreed that the limitations were unconstitutional as applied to the advertising expenditures at issue. Unlike the Commission, the Members of the Court who joined the principal opinion thought the payments were "independent expenditures" as that term had been used in our prior cases, owing to the facts that the Party spent the money before selecting its own senatorial candidate and without any arrangement with potential nominees. Id., at 613-614 (opinion of Breyer, J.).
The Party's broader claim remained: that although prior decisions of this Court had upheld the constitutionality of limits on coordinated expenditures by political speakers
Spending for political ends and contributing to political candidates both fall within the First Amendment's protection of speech and political association. Buckley, 424 U. S., at 14-23. But ever since we first reviewed the 1971 Act, we have understood that limits on political expenditures deserve closer scrutiny than restrictions on political contributions. Ibid.; see also, e. g., Shrink Missouri, 528 U. S., at 386-388; Colorado I, supra, at 610, 614-615; Massachusetts Citizens for Life, supra, at 259-260. Restraints on expenditures generally curb more expressive and associational activity than limits on contributions do. Shrink Missouri, supra, at 386-388; Colorado I, supra, at 615; Buckley, supra, at 19-23. A further reason for the distinction is that limits on contributions
Given these differences, we have routinely struck down limitations on independent expenditures by candidates, other individuals, and groups, see Federal Election Comm'n v. National Conservative Political Action Comm., 470 U.S. 480, 490-501 (1985) (political action committees); Buckley, supra, at 39-58 (individuals, groups, candidates, and campaigns),
The First Amendment line between spending and donating is easy to draw when it falls between independent expenditures by individuals or political action committees (PACs) without any candidate's approval (or wink or nod), and contributions in the form of cash gifts to candidates. See, e. g., Shrink Missouri, supra, at 386-388; Buckley, supra, at 19— 23.
Colorado I addressed the FEC's effort to stretch the functional treatment of coordinated expenditures further than the plain application of the statutory definition. As we said, the FEC argued that parties and candidates are coupled so closely that all of a party's expenditures on an election campaign are coordinated with its candidate; because Buckley had treated some coordinated expenditures like contributions
But that still left the question whether the First Amendment allows coordinated election expenditures by parties to be treated functionally as contributions, the way coordinated expenditures by other entities are treated. Colorado I found no justification for placing parties at a disadvantage when spending independently; but was there a case for leaving them entirely free to coordinate unlimited spending with candidates when others could not? The principal opinion in Colorado I noted that coordinated expenditures "share some of the constitutionally relevant features of independent expenditures." 518 U. S., at 624. But it also observed that "many [party coordinated expenditures] are . . . virtually indistinguishable
The Party's argument that its coordinated spending, like its independent spending, should be left free from restriction under the Buckley line of cases boils down to this: because a party's most important speech is aimed at electing candidates and is itself expressed through those candidates, any limit on party support for a candidate imposes a unique First Amendment burden. See Brief for Respondent 26-31. The point of organizing a party, the argument goes, is to run a successful candidate who shares the party's policy goals. Id., at 26. Therefore, while a campaign contribution is only one of several ways that individuals and nonparty groups speak and associate politically, see Shrink Missouri, 528 U. S., at 386-387; Buckley, supra, at 20-22, financial support of candidates is essential to the nature of political parties as we know them. And coordination with a candidate is a party's natural way of operating, not merely an option that can easily be avoided. Brief for Respondent 26. Limitation of any party expenditure coordinated with a candidate, the Party contends, is therefore a serious, rather than incidental, imposition on the party's speech and associative purpose, and that justifies a stricter level of scrutiny than we have applied
The Government's argument for treating coordinated spending like contributions goes back to Buckley. There, the rationale for endorsing Congress's equation of coordinated expenditures and contributions was that the equation "prevent[s] attempts to circumvent the Act through prearranged or coordinated expenditures amounting to disguised contributions." 424 U. S., at 47. The idea was that coordinated expenditures are as useful to the candidate as cash, and that such "disguised contributions" might be given "as a quid pro quo for improper commitments from the candidate" (in contrast to independent expenditures, which are poor sources of leverage for a spender because they might be duplicative or counterproductive from a candidate's point of view). Ibid. In effect, therefore, Buckley subjected limits on coordinated expenditures by individuals and nonparty groups to the same scrutiny it applied to limits on their cash contributions. The standard of scrutiny requires the limit to be "`closely drawn' to match a `sufficiently important interest,' . . . though the dollar amount of the limit need not be `fine tun[ed],' " Shrink Missouri, supra, at 387-388 (quoting Buckley, supra, at 25, 30).
The Government develops this rationale a step further in applying it here. Coordinated spending by a party should be limited not only because it is like a party contribution, but for a further reason. A party's right to make unlimited expenditures coordinated with a candidate would induce individual and other nonparty contributors to give to the party in order to finance coordinated spending for a favored candidate beyond the contribution limits binding on them. The
Each of the competing positions is plausible at first blush. Our evaluation of the arguments, however, leads us to reject the Party's claim to suffer a burden unique in any way that should make a categorical difference under the First Amendment. On the other side, the Government's contentions are ultimately borne out by evidence, entitling it to prevail in its characterization of party coordinated spending as the functional equivalent of contributions.
In assessing the Party's argument, we start with a word about what the Party is not saying. First, we do not understand the Party to be arguing that the line between independent and coordinated expenditures is conceptually unsound when applied to a political party instead of an individual or other association. See, e. g., Brief for Respondent 29 (describing "independent party speech"). Indeed, the good sense of recognizing the distinction between independence and coordination was implicit in the principal opinion in Colorado I, which did not accept the notion of a "metaphysical
Second, we do not understand the Party to be arguing that associations in general or political parties in particular may claim a variety of First Amendment protection that is different in kind from the speech and associational rights of their members.
The assertion that the party is so joined at the hip to candidates that most of its spending must necessarily be coordinated spending is a statement at odds with the history of nearly 30 years under the Act. It is well to remember that ever since the Act was amended in 1974, coordinated spending by a party committee in a given race has been limited by the provision challenged here (or its predecessor). See 18 U. S. C. § 608(f) (1970 ed., Supp. IV); see also Buckley, 424 U. S., at 194 (reprinting then-effective Party Expenditure Provision). It was not until 1996 and the decision in Colorado I that any spending was allowed above that amount, and since then only independent spending has been unlimited. As a consequence, the Party's claim that coordinated spending beyond the limit imposed by the Act is essential to its very function as a party amounts implicitly to saying that for almost three decades political parties have not been functional or have been functioning in systematic violation of the law. The Party, of course, does not in terms make either statement, and we cannot accept either implication. There is no question about the closeness of candidates to parties and no doubt that the Act affected parties' roles and their exercise of power. But the political scientists who have weighed in on this litigation observe that "there is little evidence to suggest that coordinated party spending limits adopted by Congress have frustrated the ability of political
There is a different weakness in the seemingly unexceptionable premise that parties are organized for the purpose of electing candidates, Brief for Respondent 26 ("Parties exist precisely to elect candidates that share the goals of their party"), so that imposing on the way parties serve that function is uniquely burdensome. The fault here is not so much metaphysics as myopia, a refusal to see how the power of money actually works in the political structure.
When we look directly at a party's function in getting and spending money, it would ignore reality to think that the party role is adequately described by speaking generally of
Parties thus perform functions more complex than simply electing candidates; whether they like it or not, they act as agents for spending on behalf of those who seek to produce obligated officeholders. It is this party role, which functionally unites parties with other self-interested political actors, that the Party Expenditure Provision targets. This party role, accordingly, provides good reason to view limits on coordinated spending by parties through the same lens applied to such spending by donors, like PACs, that can use parties as conduits for contributions meant to place candidates under obligation.
Insofar as the Party suggests that its strong working relationship with candidates and its unique ability to speak in coordination with them should be taken into account in the First Amendment analysis, we agree. It is the accepted understanding that a party combines its members' power to speak by aggregating contributions and broadcasting messages more widely than individual contributors generally could afford to do, and the party marshals this power with greater sophistication than individuals generally could, using such mechanisms as speech coordinated with a candidate. In other words, the party is efficient in generating large sums to spend and in pinpointing effective ways to spend them. Cf. Colorado I, 518 U. S., at 637 (Thomas, J., concurring in judgment and dissenting in part) ("Political associations allow citizens to pool their resources and make their advocacy more effective").
It does not, however, follow from a party's efficiency in getting large sums and spending intelligently that limits on a party's coordinated spending should be scrutinized under an unusually high standard, and in fact any argument from sophistication and power would cut both ways. On the one hand, one can seek the benefit of stricter scrutiny of a law capping party coordinated spending by emphasizing the heavy burden imposed by limiting the most effective mechanism of sophisticated spending. And yet it is exactly this efficiency culminating in coordinated spending that (on the Government's view) places a party in a position to be used to circumvent contribution limits that apply to individuals and PACs, and thereby to exacerbate the threat of corruption and apparent corruption that those contribution limits are aimed at reducing. As a consequence, what the Party calls an unusual burden imposed by regulating its spending is not a simple premise for arguing for tighter scrutiny of limits on a party; it is the premise for a question pointing in
The preceding question assumes that parties enjoy a power and experience that sets them apart from other political spenders. But in fact the assumption is too crude. While parties command bigger spending budgets than most individuals, some individuals could easily rival party committees in spending. Rich political activists crop up, and the United States has known its Citizens Kane. Their money speaks loudly, too, and they are therefore burdened by restrictions on its use just as parties are. And yet they are validly subject to coordinated spending limits, Buckley, 424 U. S., at 46-47, and so are PACs, id., at 35-36, 46-47, which may amass bigger treasuries than most party members can spare for politics.
Just as rich donors, media executives, and PACs have the means to speak as loudly as parties do, they would also have the capacity to work effectively in tandem with a candidate, just as a party can do. While a candidate has no way of coordinating spending with every contributor, there is nothing hard about coordinating with someone with a fortune to donate, any more than a candidate would have difficulty in coordinating spending with an inner circle of personal political associates or with his own family. Yet all of them are
A party is not, therefore, in a unique position. It is in the same position as some individuals and PACs, as to whom coordinated spending limits have already been held valid, Buckley, supra, at 46-47; and, indeed, a party is better off, for a party has the special privilege the others do not enjoy, of making coordinated expenditures up to the limit of the Party Expenditure Provision.
The Party's arguments for being treated differently from other political actors subject to limitation on political spending under the Act do not pan out. Despite decades of limitation on coordinated spending, parties have not been rendered useless. In reality, parties continue to organize to elect candidates, and also function for the benefit of donors whose object is to place candidates under obligation, a fact that parties cannot escape. Indeed, parties' capacity to concentrate power to elect is the very capacity that apparently opens them to exploitation as channels for circumventing contribution and coordinated spending limits binding on other political players. And some of these players could marshal the same power and sophistication for the same electoral objectives as political parties themselves.
Since there is no recent experience with unlimited coordinated spending, the question is whether experience under the present law confirms a serious threat of abuse from the unlimited coordinated party spending as the Government contends. Cf. Burson v. Freeman, 504 U.S. 191, 208 (1992) (opinion of Blackmun, J.) (noting difficulty of mustering evidence to support long-enforced statutes). It clearly does. Despite years of enforcement of the challenged limits, substantial evidence demonstrates how candidates, donors, and parties test the limits of the current law, and it shows beyond serious doubt how contribution limits would be eroded if inducement to circumvent them were enhanced by declaring parties' coordinated spending wide open.
Such is the state of affairs under the current law, which requires most party spending on a candidate's behalf to be
While this evidence rules out denying the potential for corruption by circumvention, the Party does try to minimize the threat. It says that most contributions to parties are small, with negligible corrupting momentum to be carried through the party conduit. Brief for Respondent 14. But some contributions are not small; they can go up to $20,000, 2 U. S. C. § 441a(a)(1)(B),
First, it says that better crafted safeguards are in place already, in particular the earmarking rule of § 441a(a)(8), which provides that contributions that "are in any way earmarked or otherwise directed through an intermediary or conduit to [a] candidate" are treated as contributions to the candidate. The Party says that this provision either suffices to address any risk of circumvention or would suffice if clarified to cover practices like tallying. Id., at 42, 47; see also 213 F. 3d, at 1232. This position, however, ignores the practical difficulty of identifying and directly combating circumvention under actual political conditions. Donations are made to a party by contributors who favor the party's candidates in races that affect them; donors are (of course) permitted to express their views and preferences to party officials; and the party is permitted (as we have held it must be) to spend money in its own right. When this is the environment for contributions going into a general party treasury, and candidate-fundraisers are rewarded with something less obvious than dollar-for-dollar pass-throughs (distributed through contributions and party spending), circumvention is obviously very hard to trace. The earmarking provision, even if it dealt directly with tallying, would reach only the most clumsy attempts to pass contributions through to candidates. To treat the earmarking provision as the outer limit of acceptable tailoring would disarm any serious effort to limit the corrosive effects of what Chief Judge Seymour called "`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," id., at 1241 (dissenting opinion); see also Briffault, Political Parties and Campaign Finance Reform,
The Party's second preferred prescription for the threat of an end run calls for replacing limits on coordinated expenditures by parties with limits on contributions to parties, the latter supposedly imposing a lesser First Amendment burden. Brief for Respondent 46-48. The Party thus invokes the general rule that contribution limits take a lesser First Amendment toll, expenditure limits a greater one. That was one strand of the reasoning in Buckley itself, which rejected the argument that limitations on independent expenditures by individuals, groups, and candidates were justifiable in order to avoid circumvention of contribution limitations. 424 U. S., at 44. It was also one strand of the logic of the Colorado I principal opinion in rejecting the Party Expenditure Provision's application to independent party expenditures. 518 U. S., at 617.
In each of those cases, however, the Court's reasoning contained another strand. The analysis ultimately turned on the understanding that the expenditures at issue were not potential alter egos for contributions, but were independent and therefore functionally true expenditures, qualifying for the most demanding First Amendment scrutiny employed in Buckley. Colorado I, supra, at 617; Buckley, supra, at 44-47. Thus, in Colorado I we could not assume, "absent
Here, however, just the opposite is true. There is no significant functional difference between a party's coordinated expenditure and a direct party contribution to the candidate, and there is good reason to expect that a party's right of unlimited coordinated spending would attract increased contributions to parties to finance exactly that kind of spending.
* * *
We hold that a party's coordinated expenditures, 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.
The Party Expenditure Provision, 2 U. S. C. § 441a(d)(3), severely limits the amount of money that a national or state committee of a political party can spend in coordination with its own candidate for the Senate or House of Representatives. See ante, at 438-439, and n. 3. Because this provision sweeps too broadly, interferes with the party-candidate relationship, and has not been proved necessary to combat corruption, I respectfully dissent.
As an initial matter, I continue to believe that Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam), should be overruled. See Nixon v. Shrink Missouri Government PAC, 528 U.S. 377, 410 (2000) (Thomas, J., dissenting); Colorado Republican Federal Campaign Comm. v. Federal Election Comm'n, 518 U.S. 604, 631 (1996) (Colorado I) (Thomas, J., concurring in judgment and dissenting in part). "Political speech is the primary object of First Amendment protection," Shrink Missouri, supra, at 410-411 (Thomas, J., dissenting); see also Eu v. San Francisco County Democratic Central
In this case, the Government does not attempt to argue that the Party Expenditure Provision satisfies strict scrutiny, see Perry Ed. Assn. v. Perry Local Educators' Assn., 460 U.S. 37, 45 (1983) (providing that, under strict scrutiny, a restriction on speech is constitutional only if it is narrowly tailored to serve a compelling governmental interest). Nor could it. For the reasons explained in my separate opinions in Colorado I, supra, at 641-644, and Shrink Missouri, supra, at 427-430, the campaign financing law at issue fails strict scrutiny.
We need not, however, overrule Buckley and apply strict scrutiny in order to hold the Party Expenditure Provision unconstitutional. Even under Buckley, which described the requisite scrutiny as "exacting" and "rigorous," 424 U. S., at 16, 29, the regulation cannot pass constitutional muster. In practice, Buckley scrutiny has meant that restrictions on contributions by individuals and political committees do not violate the First Amendment so long as they are "closely drawn" to match a "sufficiently important" government interest, Shrink Missouri, supra, at 387-389; see also Buckley, supra, at 58, but that restrictions on independent expenditures
The Court notes this existing rationale and attempts simply to treat coordinated expenditures by political parties as equivalent to contributions by individuals and political committees. Thus, at least implicitly, the Court draws two conclusions: coordinated expenditures are no different from contributions, and political parties are no different from individuals and political committees. Both conclusions are flawed.
The Court considers a coordinated expenditure to be an "`expenditur[e] made by any person in cooperation, consultation, or concert, with, or at the request or suggestion of, a candidate, his authorized political committees, or their agents.' " Ante, at 438 (quoting 2 U. S. C. § 441a(a)(7)(B)(i)). This definition covers a broad array of conduct, some of which is akin to an independent expenditure. At one extreme, to be sure, are outlays that are "virtually indistinguishable from simple contributions." Colorado I, 518 U. S., at 624 (opinion of Breyer, J.). An example would be "a donation of money with direct payment of a candidate's media bills." Ibid. But toward the other end of the spectrum are expenditures that largely resemble, and should be entitled to the same protection as, independent expenditures.
Even if I were to ignore the breadth of the statutory text, and to assume that all coordinated expenditures are functionally equivalent to contributions,
Political parties and their candidates are "inextricably intertwined" in the conduct of an election. Colorado I, supra, at 630 (Kennedy, J., concurring in judgment and dissenting in part). A party nominates its candidate; a candidate often is identified by party affiliation throughout the election and on the ballot; and a party's public image is largely defined by what its candidates say and do. See, e. g., California Democratic Party v. Jones, 530 U.S. 567, 575 (2000) ("Some political parties—such as President Theodore Roosevelt's Bull Moose Party, the La Follette Progressives of 1924, the Henry Wallace Progressives of 1948, and the George Wallace American Independent Party of 1968—are virtually inseparable from their nominees (and tend not to outlast them"); see also M. Zak, Back to Basics for the Republican Party 1 (2000) (noting that the Republican Party has been identified as the "Party of Lincoln"). Most importantly, a party's success or failure depends in large part on whether its candidates get elected. Because of this unity of interest, it is natural for a party and its candidate to work together and consult with one another during the course of the election. See, e. g., App. 137 (declaration of Herbert E. Alexander, Director of the Citizens' Research Foundation at the University of Southern California). Indeed, "it would be impractical and imprudent . . . for a party to support its own candidates without some form of `cooperation' or `consultation.' " See Colorado I, 518 U. S., at 630 (Kennedy, J., concurring in judgment and dissenting in part). "[C]andidates are necessary to make the party's message known and effective, and vice versa." Id., at 629. Thus, the ordinary means for a party to provide support is to make coordinated expenditures, see, e. g., App. 137-138 (declaration of Herbert E. Alexander), as the Government itself maintained just five years ago, see
As the District Court explained, to break this link between the party and its candidates would impose "additional costs and burdens to promote the party message." 41 F.Supp.2d 1197, 1210 (Colo. 1999). This observation finds full support in the record. See, e. g., App. 218 (statement of Anthony Corrado, Associate Professor of Government, Colby College) (explaining that, to ensure that expenditures were independent, party organizations had to establish legally separate entities, which in turn had to "rent and furnish an office, hire staff, and pay other administrative costs," as well as "engage additional consulting services" and "duplicate many of the functions already being undertaken by other party offices"); id., at 52 (statement by Federal Election Commission admitting that national party established separate entities that made independent expenditures); id., at 217 (statement of Anthony Corrado) (explaining that reliance on independent expenditures would increase fund raising demands on party organizations because independent expenditures are less effective means of communication); id., at 219 ("[I]ndependent expenditures do not qualify for the lowest unit rates on the purchase of broadcasting time"); App. in No. 99-1211 (CA10), p. 512 (report of Frank J. Sorauf, professor at University of Minnesota, and Jonathan S. Krasno, professor at Princeton University) (noting inefficiency of independent expenditures). Establishing and maintaining independence also tends to create voter confusion and to undermine the candidate that the party sought to support. App. 220 (statement of Anthony Corrado); App. in No. 99-1211 (CA10), at 623-624
The Court nevertheless concludes that these concerns of inhibiting party speech are rendered "implausible" by the nearly 30 years of history in which coordinated spending has been statutorily limited. Ante, at 449. Without a single citation to the record, the Court rejects the assertion "that for almost three decades political parties have not been functional
The Court's only other response to the argument that parties are linked to candidates and that breaking this link would impose significant costs on speech is no response at all. The Court contends that parties are not organized simply to "elec[t] particular candidates" as evidenced by the fact that many political action committees donate money to both parties and sometimes even opposing candidates. Ante, at 451. According to the Court, "[p]arties are thus necessarily the instruments of some contributors whose object is not to support the party's message or to elect party candidates across the board." Ante, at 451-452. There are two flaws in the Court's analysis. First, no one argues that a party's role is merely to get particular candidates elected. Surely, among other reasons, parties also exist to develop and promote a platform. See, e. g., Brief for Respondent 23. The point is simply that parties and candidates have shared interests, that it is natural for them to work together, and that breaking the connection between parties and their candidates inhibits the promotion of the party's message. Second, the mere fact that some donors contribute to both parties and their candidates does not necessarily imply that the donors control the parties or their candidates. It certainly does not mean that the parties are mere "instruments" or "agents," ante, at 452, of the donors. Indeed, if a party receives money from donors on both sides of an issue, how can it be a tool of both donors? If the Green Party were to receive a donation from an industry that pollutes, would the Green Party necessarily become, through no choice of its own, an instrument of the polluters? The Court proffers no evidence that parties have become pawns of wealthy contributors.
But even if I were to view parties' coordinated expenditures as akin to contributions by individuals and political committees, I still would hold the Party Expenditure Provision constitutionally invalid. Under Shrink Missouri, a contribution limit is constitutional only if the Government demonstrates that the regulation is "closely drawn" to match a "sufficiently important interest." 528 U. S., at 387-388 (quoting Buckley, 424 U. S., at 25) (internal quotation marks omitted). In this case, there is no question that the Government has asserted a sufficient interest, that of preventing corruption. See Shrink Missouri, supra, at 388 ("`[T]he prevention of corruption and the appearance of corruption' was found to be a `constitutionally sufficient justification' ") (quoting Buckley, supra, at 25-26). The question is whether the Government has demonstrated both that coordinated expenditures by parties give rise to corruption and that the restriction is "closely drawn" to curb this corruption. I believe it has not.
As this Court made clear just last Term, "[w]e have never accepted mere conjecture as adequate to carry a First Amendment burden." Shrink Missouri, 528 U. S., at 392. Some "quantum of empirical evidence [is] needed to satisfy heightened judicial scrutiny of legislative judgments." Id., at 391. Precisely how much evidence is required will "vary up or down with the novelty and plausibility of the justification raised." Ibid. Today, the Court has jettisoned this evidentiary requirement.
Without explanation, the Court departs from this earlier, well-considered understanding of the Party Expenditure Provision. Were there any evidence of corruption in the
The dearth of evidence is unsurprising in light of the unique relationship between a political party and its candidates: "The very aim of a political party is to influence its candidate's stance on issues and, if the candidate takes office or is reelected, his votes." Colorado I, 518 U. S., at
Apparently unable to provide an answer to this question, the Court relies upon an alternative theory of corruption. According to the Court, the Party Expenditure Provision helps combat circumvention of the limits on individual donors' contributions, which limits are necessary to reduce corruption by those donors.
Without addressing the District Court's determination or reflecting on this Court's understanding in Colorado I, the Court today asserts that its newfound position is supported by "substantial evidence." The best evidence the Court can come up with, however, is the Democratic Senatorial Campaign Committee's (DSCC) use of the "tally system," which "connect[s] donors to candidates through the accommodation of a party." Ante, at 459. The tally system is not evidence of corruption-by-circumvention. In actuality, the DSCC is not acting as a mere conduit, allowing donors to contribute money in excess of the legal limits. The DSCC instead has allocated money based on a number of factors, including "the financial strength of the campaign," "what [the candidate's] poll numbers looked like," and "who had the best chance of winning or who needed the money most." App. 250-251 (declaration of Robert Hickmott, former Democratic fundraiser and National Finance Director for Timothy Wirth's Senate campaign); see also App. in No. 99-1211 (CA10), at 430 (statement of Anthony Corrado) ("When parties are deciding whether to spend funds on behalf of a candidate, they chiefly examine the competitiveness of the district or race, the political situation of the incumbent, and the strength of the party contender's candidacy"); id., at 563 (deposition of Donald Bain) (stating that the party generally did not support someone who has a safe seat or is clearly not going to win). As the District Court found, "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." 41 F. Supp. 2d, at 1203. "Maintaining party control over seats is paramount to the parties' pursuits." Ibid.; see also App. in No. 99-1211 (CA10), at 483 (stating that primary goal of legislative campaign committees is "to win or maintain control of the chamber and the powers of the majority legislative party"). The
Moreover, the Court does not explain how the tally system could constitute evidence of corruption. Both the initial contribution to the party and the subsequent expenditure by the party on the candidate are currently legal. In essence, the Court is asserting that it is corrupt for parties to do what is legal to enhance their participation in the political process. Each step in the process is permitted, but the combination of those steps, the Court apparently believes, amounts to corruption sufficient to silence those who wish to support a candidate. In my view, the First Amendment demands a more coherent explication of the evidence of corruption.
Finally, even if the tally system were evidence of corruption-through-circumvention, it is only evidence of what is occurring under the current system, not of additional "corruption" that would arise in the absence of the Party Expenditure Provision. The Court speculates that, if we invalidated the Party Expenditure Provision, "the inducement to circumvent would almost certainly intensify." Ante, at 460. But that is nothing more than supposition, which is insufficient under our precedents to sustain a restriction on First Amendment interests. See Shrink Missouri, 528 U. S., at 392 ("We have never accepted mere conjecture as adequate to carry a First Amendment burden"). See also United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 822 (2000) (concluding that the government "must present more than anecdote and supposition"). And it is weak supposition at that. The Court does not contend that
Even if the Government had presented evidence that the Party Expenditure Provision affects corruption, the statute still would be unconstitutional, because there are better tailored alternatives for addressing the corruption. In addition to bribery laws and disclosure laws, see Shrink Missouri, supra, at 428 (Thomas, J., dissenting), the Government has two options that would not entail the restriction of political parties' First Amendment rights.
First, the Government could enforce the earmarking rule of 2 U. S. C. § 441a(a)(8), under which contributions that "are in any way earmarked or otherwise directed through an intermediary or conduit to [a] candidate" are treated as contributions to the candidate. Vigilant enforcement of this provision is a precise response to the Court's circumvention concerns. If a donor contributes $2,000 to a candidate (the maximum donation in an election cycle), he cannot direct the political party to funnel another dime to the candidate without confronting the Federal Election Campaign Act's civil and criminal penalties, see 2 U. S. C. § 437g(a)(6)(C) (civil); § 437g(d) (criminal).
According to the Court, reliance on this earmarking provision "ignores the practical difficulty of identifying and directly combating circumvention" and "would reach only the most clumsy attempts to pass contributions through to candidates." Ante, at 462. The Court, however, does not cite any evidence to support this assertion. Nor does it articulate what failed steps the Government already has taken. Nor does it explain why the burden that the Government allegedly would have to bear in uncovering circumvention justifies the infringement of political parties' First Amendment rights. In previous cases, we have not been so willing to overlook such failures. See, e. g., Bartnicki, 532 U. S., at 530-531 ("[T]here is no empirical evidence to support the assumption that the prohibition against disclosures reduces the number of illegal interceptions").
In my view, it makes no sense to contravene a political party's core First Amendment rights because of what a third party might unlawfully try to do. Instead of broadly restricting political parties' speech, the Government should have pursued better-tailored alternatives for combating the alleged corruption.
Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union et al. by Mark J. Lopez, Steven R. Shapiro, and Joel M. Gora; for the California Republican Party by Charles H. Bell, Jr.; for the Missouri Republican Party by D. Bruce La Pierre and W. Bevis Schock; and for the National Republican Congressional Committee by Benjamin L. Ginsberg.
The Act defines "expenditure" as "any purchase, payment, distribution, loan, advance, deposit, or gift of money or anything of value, made by any person for the purpose of influencing any election for Federal office." § 431(9)(A)(i). A "written contract, promise, or agreement to make an expenditure" also counts as an expenditure. § 431(9)(A)(ii).
The FEC reads the Act to permit parties to make campaign contributions within the otherwise-applicable contribution limits, in addition to the expenditures permitted by § 441a(d). See n. 16, infra.
The current contribution limits appear in 2 U. S. C. § 441a(a). They provide that "persons" (still broadly defined, see § 431(11)) may contribute no more than $1,000 to a candidate "with respect to any election for Federal office," $5,000 to any political committee in any year, and $20,000 to the national committees of a political party in any year. § 441a(a)(1). Individuals are limited to a yearly contribution total of $25,000. § 441a(a)(3). "[M]ulticandidate political committees" are limited to a $5,000 contribution to a candidate "with respect to any election," $5,000 to any political committee in any year, and $15,000 to the national committees of a political party in any year. § 441a(a)(2). Unlike the party expenditure limits, these contribution limits are not adjusted for inflation.
The FEC's public records confirm that Federal Express's PAC (along with many others) contributed to both major parties in recent elections. See, e. g., FEC Disclosure Report, Search Results for Federal Express Political Action Committee (June 20, 2001), http://herndon1.sdrdc.com/ cgi-bin/com supopp/C00068692; FEC Disclosure Report, Search Results for Association of Trial Lawyers of America Political Action Committee (June 20, 2001), http://herndon1.sdrdc.com/cgi-bin/com supopp/C00024521; FEC Disclosure Report, Search Results for Philip Morris Companies, Inc., Political Action Committee (June 20, 2001), http://herndon1.sdrdc.com/ cgi-bin/com supopp/C00089136; FEC Disclosure Report, Search Results for American Medical Association Political Action Committee (June 20, 2001), http://herndon1.sdrdc.com/cgi-bin/com supopp/C00000422; FEC Disclosure Report, Search Results for Letter Carriers Political Action Fund (June 20, 2001), http://herndon1.sdrdc.com/cgi-bin/com supopp/ C00023580.
"`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.' " Id., at 576 (quoting 65 Cong. Rec. 9507-9508 (1924)).
The Party appears to argue that even if the Party Expenditure Provision is justified with regard to coordinated expenditures that amount to no more than payment of the candidate's bills, the limitation is facially invalid because of its potential application to expenditures that involve more of the party's own speech. Brief for Respondent 48-49. But the Party does not tell us what proportion of the spending falls in one category or the other, or otherwise lay the groundwork for its facial over breadth claim. Cf. Broadrick v. Oklahoma, 413 U.S. 601 (1973) (over breadth must be substantial to trigger facial invalidation).
The same enhanced value of coordinated spending that could be expected to promote greater circumvention of contribution limits for the benefit of the candidate-fundraiser would probably enhance the power of the fundraiser to use circumvention as a tactic to increase personal power and a claim to party leadership. The affluent nominee can already do this to a limited extent, by directing donations to the party and making sure that the party knows who raised the money, and that the needier candidates who receive the benefit of party spending know whom to thank. The candidate can thus become a player beyond his own race, and the donor's influence is multiplied. See generally App. 249 (Hickmott declaration) ("Incumbents who were not raising money for themselves because they were not up for reelection would sometimes raise money for other Senators, or for challengers. They would send $20,000 to the DSCC and ask that this be entered on another candidate's tally. They might do this, for example, if they were planning to run for a leadership position and wanted to obtain the support of the Senators they assisted"). If the effectiveness of party spending could be enhanced by limitless coordination, the ties of straitened candidates to prosperous ones and, vicariously, to large donors would be reinforced as well. Party officials who control distribution of coordinated expenditures would obviously form an additional link in this chain. See id., at 164, 168 (Billings declaration) ("[The DSCC's three-member Executive Committee] basically made the decisions as to how to distribute the money. . . . Taking away the limits on coordinated expenditures would result in a fundamental transferal of power to certain individual Senators").
The Court's holding presents an additional First Amendment problem. Because of the close relationship between parties and candidates, lower courts will face a difficult, if not insurmountable, task in trying to determine whether particular party expenditures are in fact coordinated or independent. As the American Civil Liberties Union points out, "[e]ven if such an inquiry is feasible, it inevitably would involve an intrusive and constitutionally troubling investigation of the inner workings of political parties." Brief for American Civil Liberties Union et al.as Amici Curiae 18.
The other two quotations are somewhat suspect in that they are made by Timothy Wirth, who was the object of the negative advertisements giving rise to this lawsuit, and by his national finance director. See ibid. (quoting App. 274 (declaration of Timothy Wirth)); App. 247 (declaration of Robert Hickmott, former Democratic fundraiser and National Finance Director for Timothy Wirth's Senate campaign). Moreover, neither Wirth nor his finance director described how donations were actually treated by the DSCC, either in general or in Wirth's particular case; instead Wirth and his finance director simply reflected on their understandings of how the money would be used in Wirth's election. As noted above, the District Court found that "the primary consideration in allocating funds is which races are marginal." 41 F. Supp. 2d, at 1203. And the evidence in the record supports this finding. See supra, at 477.