In Federal Election Commission v. Colorado Republican Federal Campaign Committee, 533 U.S. 431 (2001), sometimes referred to as Colorado Republican II, the Supreme Court upheld provisions of the Federal Election Campaign Act of 1971 (FECA) limiting direct contributions to candidates by political parties. It let stand, however, its previous decision on a FECA provision, thus confirming the right of political parties to engage in virtually unlimited independent expenditures.

The litigation began with a complaint that was filed in 1986 and reached the Court in Colorado Republican Federal Campaign Committee v. Federal Election Commission, or Colorado Republican I. The Court remanded the case to the Tenth Circuit Court of Appeals to help sort out constitutional from statutory issues. In Colorado Republican II, Justice David H. Souter, writing for a Court majority, emphasized the need for limits on parties to prevent circumvention of the limits placed upon individual donors. To hold otherwise would allow individuals to contribute to political parties with the full understanding that such monies immediately would be forwarded to certain candidates. The Court took seriously Congress’s concern and response through FECA about corruption as well as the appearance thereof. Citing Buckley v. Valeo (1976), Souter asserted that the potential for corruption made coordinated spending (involving parties and their candidates) analogous to a direct contribution. Thus, he subjected the statute to intermediate rather than strict scrutiny. “We accordingly apply ... scrutiny appropriate for a contribution limit, enquiring whether the restriction is ‘closely drawn’ to match what we have recognized as the ‘sufficiently important’ governmental interest in combating political corruption.” With the adequacy of the governmental interest largely uncontested, Souter also found the chosen mechanism sufficiently closely drawn to survive constitutional scrutiny.

The Court thus rejected a variety of alternative mechanisms suggested by the Colorado Republican Party. For example, the Republicans argued that the statute already treated earmarked funds as a direct contribution. Therefore, additional regulation was unnecessary to prevent conduit contributions. The Court responded, however, that “to treat the earmarking provision as the outer limit of acceptable tailoring would disarm any effort to limit the corrosive effects” of money in politics. The Republicans later argued that Congress should replace the limits on coordinated expenditures by parties with limits on contributions to parties. Souter disagreed with this potential prescription, stating that “there is no significant functional difference between a party’s coordinated expenditure and a direct party contribution to the candidate.” Justice Clarence Thomas wrote a dissent, joined by Antonin Scalia, Anthony M. Kennedy, and in part by Chief Justice William H. Rehnquist, arguing that the law at issue was too broad.

Nonetheless, the Court majority brought some closure to this litigation. Unlike in Colorado Republican I, the court’s opinion in Colorado Republican II carried the force of a court majority. With the strength of that majority, Souter maintained the right of parties to engage in independent expenditures but upheld limits upon coordinated expenditures between political parties and their respective candidates. Colorado Republican II furthered a constitutional dialogue that continued into the court’s review of the McCain-Feingold Act in McConnell v. Federal Election Commission (2003) and Federal Election Commission v. Wisconsin Right to Life, Inc. (2007).

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