No. 00-191

                                 IN THE
                Supreme Court of the United States


                      FEDERAL ELECTION COMMISSION,Petitioner,
                                    v.

     COLORADO REPUBLICAN FEDERAL CAMPAIGN COMMITTEE,
                                                       Respondent.


               On Writ of Certiorari to the United States
                Court of Appeals for the Tenth Circuit



                  BRIEF OF AMICUS CURIAE
       NATIONAL VOTING RIGHTS INSTITUTE
                IN SUPPORT OF PETITIONER


JOHN C. BONIFAZ                      DAVID A. WILSON
BRENDA WRIGHT                        Counsel of Record
GREGORY G. LUKE                      HALE AND DORR LLP
NATIONAL VOTING RIGHTS               1455 Pennsylvania Avenue, N.W.
  INSTITUTE                          10th Floor
1 Bromfield Street                   Washington, D.C.  20004
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(617) 368-9100

                        Attorneys for Amicus Curiae



                                               - i -

                           TABLE OF CONTENTS

INTEREST OF AMICUS CURIAE ......................................                         1

SUMMARY OF ARGUMENT .............................................                        2

ARGUMENT.........................................................................        3

    I. Coordinated Expenditures Are De Facto Direct
          Contributions That Congress Recognized Must Be

Thomas, J., dissenting
SUPREME COURT OF THE UNITED STATES
 No. 00-191
 FEDERAL ELECTION COMMISSION, PETITIONER v. COLORADO REPUBLICAN
FEDERAL
CAMPAIGN COMMITTEE
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE TENTH CIRCUIT
[June 25, 2001]
Justice Thomas, with whom Justice Scalia and Justice Kennedy join, and with whom The
Chief Justice joins as to Part II, dissenting.
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 3, 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.
I 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 Comm., 489 U.S.
214, 223 (1989); Mills v. Alabama, 384 U.S. 214, 218 (1966), and it is the lifeblood of a
self-governing people, see Shrink Missouri, supra, at 405 (Kennedy, J., dissenting)
("[P]olitical speech in the course of elections [is] the speech upon which democracy
depends"). I remain baffled that this Court has extended the most generous First
Amendment safeguards to filing lawsuits, wearing profane jackets, and exhibiting drive-
in movies with nudity,1 but has offered only tepid protection to the core speech and
associational rights that our Founders sought to defend.
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.
II
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

SUPREME COURT OF THE UNITED STATES
 No. 00-191
 FEDERAL ELECTION COMMISSION, PETITIONER v. COLORADO REPUBLICAN
FEDERAL
CAMPAIGN COMMITTEE
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE TENTH CIRCUIT
[June 25, 2001]
Justice Souter delivered the opinion of the Court.
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.
I 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 Comm'n v. Massachusetts Citizens for Life, Inc., 479 U.S. 238, 259-260
(1986).
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).1 Expenditures coordinated with a candidate, that is, are
contributions under the Act.
The Federal Election 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 committee2 is limited to spending the greater of $20,000 (adjusted

SUPREME COURT OF THE UNITED STATES
FEDERAL ELECTION COMMISSION v. COLORADO REPUBLICAN FEDERAL
CAMPAIGN COMMITTEE
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH
CIRCUIT
 No. 00-191. Argued February 28, 2001­Decided June 25, 2001
 In Buckley v. Valeo, 424 U.S. 1, 12-59, this Court held that the limitations on political
campaign contributions in the Federal Election Campaign Act of 1971 were generally
constitutional, but that the Act's limitations on election expenditures infringed political
expression in violation of the First Amendment. Later cases have respected this line
between contributing and spending. The distinction's simplicity 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
... a candidate," §2 U.S.C.  441a (a)(7)(B)(i). Thus, expenditures coordinated with a
candidate are contributions under the Act. The Federal Election Commission (FEC)
originally took the position that any expenditure by a political party in connection with a
federal election was presumed to be coordinated with the party's candidate. See, e.g.,
Federal Election Comm'n v. Democratic Senatorial Campaign Comm., 454 U.S. 27, 28-
29, n. 1. The FEC thus assumed that all expenditure limits imposed on political parties
were, in essence, contribution limits and therefore constitutional. Such limits include
§441a(d)(3), which imposes spending limits on national and state political parties with
respect to United States Senate elections. In Colorado Republican Federal Campaign
Comm. v. Federal Election Comm'n, 518 U.S. 604 (Colorado I), the spending limits in
§441a(d)(3) (referred to as the Party Expenditure Provision), were held unconstitutional
as applied to the independent expenditures of the Colorado Republican Federal Campaign
Committee (Party) in connection with a senatorial campaign. The principal opinion ruled
the payments "independent, " rather than coordinated, expenditures under this Court's
cases because the Party spent the money before selecting its own senatorial candidate and
without any arrangement with potential nominees. Id., at 613-614. The principal
opinion remanded the Party's broader claim that all limits on a party's congressional
campaign expenditures are facially unconstitutional and thus unenforceable even as to
spending coordinated with a candidate. Id., at 623-626. On remand, the District Court
held for the Party on that claim, and a divided Tenth Circuit panel affirmed.
Held: Because a party's coordinated expenditures, unlike expenditures truly independent,
may be restricted to minimize circumvention of the Act's contribution limits, the Party's
facial challenge is rejected. Pp. 4-30.
(a) Political expenditure limits deserve closer scrutiny than contribution restrictions, e.g.,
Buckley, 424 U.S., at 14-23, because expenditure restraints generally curb more
expressive and associational activity than contribution limits, e.g., id., at 19-23, and
because unlimited contributions are more clearly linked to political corruption than other
kinds of unlimited political spending, at least where the spending is not coordinated with
a candidate or his campaign. E.g., id., at 47. Although the First Amendment  line is easy
to draw when it falls between independent expenditures by individuals or political action
committees (PACs) without any candidate's approval and contributions in the form of