Federal Election Campaign Act; 52 USC § 30116; 11 CFR § 109.37; First Amendment challenge to the Act’s limits on coordinated campaign expenditures (restricting political parties from spending money on campaign advertising with input from the party’s candidate); FEC v Colorado Republican Fed Campaign Comm (Colorado II); Facial challenge; Effect of the Supreme Court’s recent campaign finance decisions; Effect of congressional changes to campaign finance laws; As-applied challenge

In an en banc response to a certified question, the court rejected plaintiffs’ First Amendment challenges to the constitutionality of the Federal Election Campaign Act’s limitations on coordinated campaign expenditures, based on the Supreme Court’s decision in Colorado II. In 2001, the Supreme Court held in Colorado II that the Federal Election Campaign Act’s limits on coordinated campaign expenditures restricting political parties from spending money on campaign advertising with input from the party’s candidate did not violate the First Amendment. Plaintiffs here argued that this decision was no longer viable considering the changing campaign-spending landscape. The court first considered whether the Act’s limits on coordinated party expenditures facially violate the First Amendment. Although they recognized the binding nature of Colorado II, plaintiffs argued that “recent campaign finance developments have undermined several aspects of the decision.” But the court noted that while there has been some “tension” between Colorado II and later cases, “Colorado II remains standing. Any shifts in reasoning do not shift the precedential terrain from our vantage point. The Supreme Court has never overruled the decision.” Plaintiffs also contended that Congress’s amendments to campaign finance laws “‘radically altered [the Act’s] nature and structure.[,]’” However, the fact that “Congress added three new exemptions—for party conventions, party headquarters, and election recounts—does not suffice to invalidate the Act’s limits on coordinated party expenditures under the more deferential form of review that applies to contribution limits. These changes to the Act simply do not suffice to alter the verdict of Colorado II.” Turning to plaintiffs’ as-applied challenge, the court noted that they wished “to be freed of all of the limits on coordinated party expenditures with respect to all ‘political advertising’ covered by the regulation. To honor that request would necessarily slight the reasoning of Colorado II and would leave little if any coordinated expenditures for that decision to cover. That simply is not the kind of as-applied challenge the Court left open for future litigants to bring.” Thus, the court answered the “certified question in the negative. The limits on coordinated party expenditures in § 315 of the Federal Election Campaign Act of 1971, as amended, . . . § 30116, do not violate the First Amendment, either on their face or as applied to party spending in connection with ‘party coordinated communications’ as defined in” § 109.37.