NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Lumber Co., 200 U.S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

COLORADO REPUBLICAN FEDERAL CAMPAIGN COMMITTEE et al. v. FEDERAL ELECTION COMMISSION

certiorari to the united states court of appeals for the tenth circuit

No. 95-489. Argued April 15, 1996 -- Decided June 26, 1996

Before the Colorado Republican Party selected its 1986 senatorial candidate, its Federal Campaign Committee (Colorado Party), the petitioner here, bought radio advertisements attacking the Democratic Party's likely candidate. The Federal Election Commission (FEC) brought suit charging that the Colorado Party had violated the "Party Expenditure Provision" of the Federal Election Campaign Act of 1971 (FECA), 2 U.S.C. § 441a(d)(3), which imposes dollar limits upon political party "expenditure[s] in connection with the general election campaign of a [congressional] candidate." The Colorado Party defended in part by claiming that the expenditure limitations violated the First Amendment as applied to its advertisements, and filed a counterclaim seeking to raise a facial challenge to the Provision as a whole. The District Court interpreted the "in connection with" language narrowly and held that the Provision did not cover the expenditure at issue. It therefore entered summary judgment for the Colorado Party, dismissing the counterclaim as moot. In ordering judgment for the FEC, the Court of Appeals adopted a somewhat broader interpretation of the Provision, which, it said, both covered this expenditure and satisfied the Constitution.

Held: The judgment is vacated, and the case is remanded.

59 F. 3d 1015, vacated and remanded.

Justice Breyer, joined by Justice O'Connor and Justice Souter, concluded that the First Amendment prohibits application of the Party Expenditure Provision to the kind of expenditure at issue here--an expenditure that the political party has made independently, without coordination with any candidate. Pp. 6-17.

(a) The outcome is controlled by this Court's FECA case law. After weighing the First Amendment interest in permitting candidates (and their supporters) to spend money to advance their political views, against a "compelling" governmental interest in protecting the electoral system from the appearance and reality of corruption, see, e.g., Buckley v. Valeo, 424 U.S. 1, 14-23 (per curiam), the Court has ruled unconstitutional FECA provisions that, inter alia, limited the right of individuals, id., at 39-51, and political committees, Federal Election Comm'n v. National Conservative Political Action Comm., 470 U.S. 480, 497, to make "independent" expenditures not coordinated with a candidate or a candidate's campaign, but has permitted other FECA provisions that imposed contribution limits both when an individual or political committee contributed money directly to a candidate, and when they contributed indirectly by making expenditures that they coordinated with the candidate, see Buckley, supra, at 23-36, 46-48. The summary judgment record indicates that the expenditure here at issue must be treated, for constitutional purposes, as an "independent" expenditure entitled to First Amendment protection, not as an indirect campaign contribution subject to regulation. There is uncontroverted direct evidence that the Colorado Party developed its advertising campaign independently and not pursuant to any understanding with a candidate. Since the Government does not point to evidence or legislative findings suggesting any special corruption problem in respect to political parties' independent expenditures, the Court's prior cases forbid regulation of such expenditures. Pp. 6-12.

(b) The Government's argument that this expenditure is not "independent," but is rather a "coordinated expenditure" which this Court has treated as a "contribution" that Congress may constitutionally regulate, is rejected. The summary judgment record shows no actual coordination with candidates as a matter of fact. The Government's claim for deference to FEC interpretations rendering all party expenditures "coordinated" is unpersuasive. Federal Election Comm'n v. Democratic Senatorial Campaign Comm., 454 U.S. 27, 28-29, n. 1, distinguished. These regulations and advisory opinions do not represent an empirical judgment by the FEC that all party expenditures are coordinated with candidates or that party independent and coordinated expenditures cannot be distinguished in practice. Also unconvincing are the Government's contentions that the Colorado Party has conceded that the expenditure here is "coordinated," and that such coordination exists because a party and its candidate are, in some sense, identical. Pp. 12-17.

(c) Because this expenditure is "independent," the Court need not reach the broader question argued by the Colorado Party: whether, in the special case of political parties, the First Amendment also forbids congressional efforts to limit coordinated expenditures. While the Court is not deprived of jurisdiction to consider this facial challenge by the failure of the parties and the lower courts to focus specifically on the complex issues involved in determining the constitutionality of political parties' coordinated expenditures, that lack of focus provides a prudential reason for the Court not to decide the broader question. This is the first case to raise the question, and the Court should defer action until the lower courts have considered it in light of this decision. Pp. 17-20.

Justice Kennedy, joined by The Chief Justice and Justice Scalia, concluded that, on its face, FECA violates the First Amendment when it restricts as a "contribution" a political party's spending "in cooperation, consultation, or concert, with . . . a candidate." 2 U.S.C. § 441a(a)(7)(B)(i). The Court in Buckley v. Valeo, 424 U.S. 1 (per curiam), had no occasion to consider limitations on political parties' expenditures, id., at 58, n. 66, and its reasoning upholding ordinary contribution limitations should not be extended to a case that does. Buckley's central holding is that spending money on one's own speech must be permitted, id., at 44-58, and that is what political parties do when they make the expenditures that §441a(a)(7)(B)(i) restricts as "contribution[s]." Party spending "in cooperation, consultation, or concert with" a candidate is indistinguishable in substance from expenditures by the candidate or his campaign committee. The First Amendment does not permit regulation of the latter, see id., at 54-59, and it should not permit this regulation of the former. Pp. 1-5.

Justice Thomas, joined by The Chief Justice and Justice Scalia, concluded in Parts I and III that 2 U.S.C. § 441a(d)(3) is unconstitutional not only as applied to petitioners, but also on its face. Pp. 1-5, 16-19.

(a) The Court should decide the Party's facial challenge to §441a(d)(3), addressing the constitutionality of limits on coordinated expenditures by political parties. That question is squarely before the Court, and the principal opinion's reasons for not reaching it are unpersuasive. In addition, concerns for the chilling of First Amendment expression counsel in favor of resolving the question. Reaching the facial challenge will make clear the circumstances under which political parties may engage in political speech without running afoul of §441a(d)(3). Pp. 1-5.

(b) Section 441a(d)(3) cannot withstand a facial challenge under the framework established by Buckley v. Valeo, 424 U.S. 1 (per curiam). The anticorruption rationale that the Court has relied on is inapplicable in the specific context of campaign funding by political parties, since there is only a minimal threat of corruption when a party spends to support its candidate or to oppose his competitor, whether or not that expenditure is made in concert with the candidate. Parties and candidates have traditionally worked together to achieve their common goals, and when they engage in that work, there is no risk to the Republic. To the contrary, the danger to lies in Government suppression of such activity. Pp. 16-19.

Justice Thomas also concluded in Part II that, in resolving the facial challenge, the Buckley framework should be rejected because there is no constitutionally significant difference between campaign contributions and expenditures: both involve core expression and basic associational rights that are central to the First Amendment. Curbs on such speech must be strictly scrutinized. See, e.g., Federal Election Comm'n v. National Conservative Political Action Comm., 470 U.S. 480, 501. Section 441a(d)(3)'s limits on independent and coordinated expenditures fail strict scrutiny because the statute is not narrowly tailored to serve the compelling governmental interest in preventing the fact or appearance of "corruption," which this Court has narrowly defined as a "financial quid pro quo: dollars for political favors," id., at 497. Contrary to the Court's ruling in Buckley, supra, at 28, bribery laws and disclosure requirements present less restrictive means of preventing corruption than does §441a(d)(3), which indiscriminately covers many conceivable instances in which a party committee could exceed spending limits without any intent to extract an unlawful commitment from a candidate. Pp. 11-15.

Breyer, J., announced the judgment of the Court and delivered an opinion, in which O'Connor and Souter, JJ., joined. Kennedy, J., filed an opinion concurring in the judgment and dissenting in part, in which Rehnquist, C. J., and Scalia, J., joined. Thomas, J., filed an opinion concurring in the judgment and dissenting in part, in which Rehnquist, C. J., and Scalia, J., joined as to Parts I and III. Stevens, J., filed a dissenting opinion, in which Ginsburg, J., joined.