Coordinated Party Spending Caps Meet Conservative Sixth Circuit

Republicans have long sought to abolish the cap on how much political parties can spend in coordination with federal political candidates. And while the issue will go in front of appeals judges Wednesday, they ultimately have their sights set on the nation’s highest court.

The full US Court of Appeals for the Sixth Circuit will hear oral arguments in Cincinnati on whether to lift the limits on “coordinated party expenditures” on free-speech grounds. Republicans argue that a lot has changed since 2001, when a divided Supreme Court ruled that the limits should remain.

The court’s decision could, to hear the Federal Election Commission and its allies in opposition tell it, open another avenue for large amounts of money to give way to illegal backroom deals.

“It’s not more money, it’s just more direct money,” said Tara Malloy, senior director for appellate litigation and strategy at the watchdog group Campaign Legal Center. “And unfortunately, a more direct connection between the big donor and the candidate that benefits, and one that will probably only be used to further ingratiate big donors with candidates and lead to further political corruption.”

The case is the latest Republicans have brought that to allow big-money contributions. A win would not only mean coordination on things like advertising, but the infrastructural hoops parties must jump through to independently spend money to boost a candidate may become a thing of the past.

“What you’re doing is you’re frustrating the ability of a political association to engage in its own speech in cooperation with its own candidate for office, with very little demonstration that such expenditures would corrupt the politician,” said Lee E. Goodman, a former Republican FEC chairman and commissioner who’s now a partner at Wiley Rein LLP.

Limits on Spending

Rescinding rules on how much parties can spend in coordination with candidates would allow national organizations to spend unlimited amounts in concert with their nominees for key Senate and House seats. The parties and candidates could explicitly discuss how that money is used, free of limits that amount to a fraction of the millions spent on competitive races.

The limits, which are indexed for inflation each election cycle, range from $61,800 for House races in most states to $32,392,200 for presidential nominees in 2024.

Candidates are allowed to raise $3,300 per election from individual donors.

Abolishing the rules also would allow party committees to buy airtime at the significantly cheaper rates given to candidates.
While that would make the big donors’ dollars go further — more campaign commercials for the same amount of money — the dynamics of every campaign would be different, with candidates driving the message in some races while the bankrollers dominate in others.

The Supreme Court in 2001 in FEC v. Colorado Republican Federal Campaign Committee (also known as Colorado II), upheld coordinated party expenditure limits on the grounds there was no “significant functional difference” between such spending and direct party contributions to candidates, and that the limits can “minimize circumvention” of individual contribution limits. Clarence Thomas, the only current justice who participated in that case, wrote the dissenting opinion in the 5-4 ruling.

Strengthened ‘Backdrop’

The plaintiffs—which include the National Republican Senatorial Committee, the National Republican Congressional Committee, Sen. J.D. Vance (R-Ohio), and former Rep. Steve Chabot (R-Ohio)—sued the FEC in 2022.

In January, Judge Douglas R. Cole of Southern District of Ohio, an appointee of President Donald Trump, asked the full Sixth Circuit whether the limits violated the First Amendment, either on their face or as applied to spending in connection with so-called “party coordinated communications”—basically political advertising.

Republicans argue in their brief to the conservative-leaning Sixth Circuit that the Supreme Court “has strengthened the ‘legal backdrop’ governing First Amendment challenges to campaign-finance restrictions” since 2001. It also said changes Congress made in 2014 give the Sixth Circuit a substantially changed statute with which to reckon, given that the law removed caps on coordinated spending on presidential nominating conventions, infrastructure for parties, and legal fees for candidates.

The rise of super PACs also helps provide a different “factual backdrop,” they said.

The FEC said the court has no reason to overturn precedent and that abolishing the limits “presents an intolerable risk of quid pro quo corruption, or at the minimum, the appearance of such corruption.”

Preventing Corruption

Tom Moore, a former chief of staff to a Democratic FEC commissioner, agreed with that assessment.

“What I fail to see in any of the changes since Colorado II is why a bigger check from an individual is any less possibly corrupting than it ever was,” said Moore, now a senior fellow at the liberal Center for American Progress.

Goodman, however, said the FEC has always had to reply on a “hypothetical” that a candidate may be corrupted by a donor giving money through a political party, something he described as “a corruption argument of the second order.”

He added that “it’s always been a very weak governmental interest to justify such a restriction on freedom of association and speech by political parties.”

Malloy, who filed an amicus brief on behalf of her organization and fellow watchdog group Citizens for Responsibility and Ethics in Washington urging the Sixth Circuit to leave the limits in place, said she’s interested to find out the court’s willingness to rule against precedent.

“Even a conservative court, I think, is loath to openly disregard a standing US Supreme Court precedent, but you know, that remains to be seen,” Malloy said.

The FEC is represented in-house. The plaintiffs are represented by Jones Day. The committees are also represented by Holtzman Vogel Baran Torchinsky & Josefiak PLLC.

The case is NRSC v. FEC, 6th Cir. en banc, No. 24-3051, oral argument scheduled for 6/12/24.