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No. 95-489

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COLORADO REPUBLICAN FEDERAL CAMPAIGN COMMITTEE and DOUGLAS JONES, TREASURER, PETITIONERS v. FEDERAL ELECTION COMMISSION

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

[June 26, 1996]

Justice Kennedy, with whom The Chief Justice and Justice Scalia join, concurring in the judgment and dissenting in part.

In agreement with Justice Thomas, post, at 1-5, I would hold that the Colorado Republican Party, in its pleadings in the District Court and throughout this litigation, has preserved its claim that the constraints imposed by the Federal Election Campaign Act of 1971 (FECA), both on its face and as interpreted by the Federal Elections Commission (FEC), violate the First Amendment.

In the plurality's view, the FEC's conclusive presumption that all political party spending relating to identified candidates is "coordinated" cannot be squared with the First Amendment. Ante, at 12-17. The plurality finds the presumption invalid, and I agree with much of the reasoning behind that conclusion. The quarrel over the FEC's presumption is beside the point, however, for under the statute it is both burdensome and quite unrealistic for a political party to attempt the expenditure of funds on a candidate's behalf (or against other candidates) without running afoul of FECA's spending limitations.

Indeed, the plurality's reasoning with respect to the presumption illuminates the deficiencies in the statutory provision as a whole as it constrains the speech and political activities of political parties. The presumption is a logical, though invalid, implementation of the statute, which restricts as a "contribution" a political party's spending "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). While the statutory provision applies to any "person," its obvious purpose and effect when applied to political parties, as the FEC's presumption reflects, is to restrict any party's spending in a specific campaign for or against a candidate and so to burden a party in expending its own money for its own speech.

The central holding in Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam), is that spending money on one's own speech must be permitted, id., at 44-58, and this is what political parties do when they make the expenditures FECA restricts. FECA calls spending of this nature a "contribution," §441a(a)(7)(B)(i), and it is true that contributions can be restricted consistent with Buckley, supra, at 23-38. As the plurality acknowledges, however, and as our cases hold, we cannot allow the Government's suggested labels to control our First Amendment analysis. Ante, at 15. See also, e. g., Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 843 (1978) ("Deference to a legislative finding cannot limit judicial inquiry when First Amendment rights are at stake"). In Buckley, we concluded that contribution limitations imposed only "marginal restriction[s]" on the contributor's First Amendment rights, 424 U. S., at 20, because certain attributes of contributions make them less like "speech" for First Amendment purposes:

"A contribution serves as a general expression of support for the candidate and his views, but does not communicate the underlying basis for the support. The quantity of communication by the contributor does not increase perceptibly with the size of his contribution, since the expression rests solely on the undifferentiated, symbolic act of contributing. At most, the size of the contribution provides a very rough index of the intensity of the contributor's support for the candidate. A limitation on the amount of money a person may give to a candidate or campaign organization thus involves little direct restraint on his political communication, for it permits the symbolic expression of support evidenced by a contribution but does not in any way infringe the contributor's freedom to discuss candidates and issues. While contributions may result in political expression if spent by a candidate or an association to present views to the voters, the transformation of contributions into political debate involves speech by someone other than the contributor." Id., at 21 (footnote omitted).

We had no occasion in Buckley to consider possible First Amendment objections to limitations on spending by parties. Id., at 58, n. 66. While our cases uphold contribution limitations on individuals and associations, see id., at 23-38; California Medical Assn. v. Federal Election Comm'n, 453 U.S. 182, 193-199 (1981) (plurality opinion), political party spending "in cooperation, consultation, or concert with" a candidate does not fit within our description of "contributions" in Buckley. In my view, we should not transplant the reasoning of cases upholding ordinary contribution limitations to a case involving FECA's restrictions on political party spending.

The First Amendment embodies a "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide open." New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964). Political parties have a unique role in serving this principle; they exist to advance their members' shared political beliefs. See, e. g., Eu v. San Francisco County Democratic Central Comm., 489 U.S. 214 (1989); Sweezy v. New Hampshire, 354 U.S. 234, 250 (1957). Cf. Morse v. Republican Party of Va., 517 U. S. ___, ___ (1996) (slip op., at 3-4) (Kennedy, J., dissenting). A party performs this function, in part, by "identify[ing] the people who constitute the association, and . . . limit[ing] the association to those people only." Democratic Party of United States v. Wisconsin ex rel. La Follette, 450 U.S. 107, 122 (1981). Having identified its members, however, a party can give effect to their views only by selecting and supporting candidates. A political party has its own traditions and principles that transcend the interests of individual candidates and campaigns; but in the context of particular elections, candidates are necessary to make the party's message known and effective, and vice versa.

It makes no sense, therefore, to ask, as FECA does, whether a party's spending is made "in cooperation, consultation, or concert with" its candidate. The answer in most cases will be yes, but that provides more, not less, justification for holding unconstitutional the statute's attempt to control this type of party spending, which bears little resemblance to the contributions discussed in Buckley. Supra, at 2-3. Party spending "in cooperation, consultation, or concert with" its candidates of necessity "communicate[s] the underlying basis for the support," 424 U. S., at 21, i. e., the hope that he or she will be elected and will work to further the party's political agenda.

The problem is not just the absence of a basis in our First Amendment cases for treating the party's spending as contributions. The greater difficulty posed by the statute is its stifling effect on the ability of the party to do what it exists to do. It is fanciful to suppose that limiting party spending of the type at issue here "does not in any way infringe the contributor's freedom to discuss candidates and issues," ibid., since it would be impractical and imprudent, to say the least, for a party to support its own candidates without some form of "cooperation" or "consultation." The party's speech, legitimate on its own behalf, cannot be separated from speech on the candidate's behalf without constraining the party in advocating its most essential positions and pursuing its most basic goals. The party's form of organization and the fact that its fate in an election is inextricably intertwined with that of its candidates cannot provide a basis for the restrictions imposed here. See Federal Election Comm'n v. National Conservative Political Action Comm., 470 U.S. 480, 494-495 (1985).

We have a constitutional tradition of political parties and their candidates engaging in joint First Amendment activity; we also have a practical identity of interests between the two entities during an election. Party spending "in cooperation, consultation, or concert with" a candidate therefore is indistinguishable in substance from expenditures by the candidate or his campaign committee. We held in Buckley that the First Amendment does not permit regulation of the latter, see 424 U. S., at 54-59, and it should not permit this regulation of the former. Congress may have authority, consistent with the First Amendment, to restrict undifferentiated political party contributions which satisfy the constitutional criteria we discussed in Buckley, but that type of regulation is not at issue here.

I would resolve the Party's First Amendment claim in accord with these principles rather than remit the Party to further protracted proceedings. Because the plurality would do otherwise, I concur only in the judgment.