Colorado Republican Federal Campaign Committee v. Federal Election Commission
Decided on June 26, 1996; 518 US 604

Campaign spending by political parties on behalf of congressional candidates may not be limited as long as the parties work independently of the candidates.



A. Issues Discussed:  Free speech, campaign finance 

B. Legal Question Presented:

Does the Federal Election Campaign Act (FECA) of 1971, which places limits on expenditure by political parties in connection with a general campaign, violate the First Amendment?

A. Background:

"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), 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."

On certiorari, the U.S. Supreme Court vacated and remanded the judgment of the United States Court of Appeals for the Tenth Circuit.

B. Counsel of Record:


Opposing Side

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C. The Arguments:
Opposing Side
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Opposing Side
Jan Witold Baran argued the cause for petitioners. With him on the briefs were Thomas W Kirby, Carol A. Laham, and Michael E. Toner.

Briefs of amici curiae urging reversal were filed for the American Civil Liberties Union et al. by David H. Remes, David H. Miller, Arthur B. Spitzer, Steven R. Shapiro, Joel M. Gora, and Arthur N. Eisenberg; for the Democratic National Committee et al. by Joseph E. Sandler and Robert F. Bauer; for the National Right to Life Committee, Inc., by James Bopp, Jr., and Richard E. Coleson; and for the Washington Legal Foundation et al. by Benjamin L. Ginsberg and Daniel J. Popeo.
Solicitor General Days argued the cause for respondent. With him on the brief were Deputy Solicitor General Bender, Malcolm L. Stewart, Lawrence M. Noble, Richard B. Bader, and Rita A. Reimer. Briefs of amici curiae urging affirmance were filed for the Brennan Center for Justice by Burt Neuborne; and for Common Cause et al. by Roger M. Witten, Donald J. Simon, and Alan Morrison.


The Supreme Court held 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...

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, the Court has ruled unconstitutional FECA provisions that, inter alia, limited the right of individuals and political committees, 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...

[T]he 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."

The United States Supreme Court vacated and remanded the United States Court of Appeals for the Tenth Circuit judgment.

Justice Vote: 2 Pro vs. 7 Con
  • Stevens, J. Pro (Wrote dissenting opinion)
  • Ginsburg, R. Pro (Joined dissenting opinion)
  • Breyer, S. Con (Wrote majority opinion)
  • Kennedy, A. Con (Wrote concurring dissenting opinion)
  • Thomas, C. Con (Wrote concurring dissenting opinion)
  • O'Connor, S. Con (Joined majority opinion)
  • Souter, D. Con (Joined majority opinion)
  • Rehnquist, W. Con (Joined majority opinion)
  • Scalia, A. Con (Joined majority opinion)

The ACLU, as amicus curiae, urged affirmance of the judgment of the Court of Appeals for the Tenth Circuit; the Supreme Court vacated and remanded in a 2-7 vote, giving the ACLU an apparent loss.