Transcript

CHIEF JUSTICE REHNQUIST: We'll hear argument now in Number 95-489, the Colorado Republican Federal Campaign Committee v. Federal Election Commission. Mr. Baran. Is that correct pronunciation?

MR. BARAN: That is correct. REHNQUIST: Mr. Baran. ORAL ARGUMENT OF JAN WITOLD BARAN ON BEHALF OF THE PETITIONERS

MR. BARAN: Mr. Chief Justice and may it please the Court: The Colorado Republican Party, like any party, has a lot to say about issues and candidates, but when it starts talking about congressional issues and congressional candidates it becomes subject to a Federal law that limits that type of core political speech.

>From the inception of this case, the Colorado Republican Party has asked that this Federal law, section 441a(d)(3), be declared unconstitutional because it needlessly prevents our speech, speech that we are ready, willing, and able to engage in.

The FEC has also accused my client of violating this statute by virtue of financing a radio advertisement known as Wirth Facts Number 1. The FEC would like my client punished for this alleged violation.

Thus, this case presents two important issues to the Court. The first issue was alluded to in this Court's opinion in Buckley v. Valeo 20 years ago.

At issue is, does the First Amendment permit Congress to limit a political party's speech, including speech that contains express advocacy in support of the party's own candidates?

If this Court upholds such a limit, then the second issue is raised, which is, are political parties entitled, at the very least, to clear guidance as to which of its speech is subject to a spending limit and which speech is not?

JUSTICE SANDRA DAY O'CONNOR: Well, Mr. Baran, I thought there was another possible question here, which is whether the statute as presently drafted covers this expenditure at all.

One could -- this was an advertisement, as I understand it, paid for by the Colorado political committee at a time when there was no Republican nominee for the Senate and, indeed, not officially a Democratic nominee, and one could read 441a(d) as not covering that at all.

Now, what if we think that's the situation? Do we reach some constitutional issue, or can we just say, gee, the statute doesn't cover it, and we'll postpone those bigger issues for an occasion when it does?

MR. BARAN: If the Court reached such a decision, Justice O'Connor, it would still leave section 441a(d) as limiting some form of speech, speech by my client.

JUSTICE O'CONNOR: Well, it would, but what do you think our doctrines are on reaching constitutional issues unnecessarily?

MR. BARAN: I believe that in prior cases involving restrictions on campaign speech the Court has addressed specific statutory limitations, including, of course, most expansively in the Buckley decision, but it did so also in the NCPAC decision in terms of evaluating a particular statute under a declaratory judgment request by a party such as my client.

JUSTICE ANTONIN SCALIA: You had a separate counterclaim asking for declaratory judgment and making a facial attack on the statute so that even if we found against the Government's claim, against the Republican Party, we would still have to adjudicate the disposition that was made of your claim against the Commission, which was a facial challenge, as I gather.

MR. BARAN: Yes, Justice Scalia, that is our position. We've had a separate discrete counterclaim that was part of our answer.

The discovery that took place in the district court focused on that issue as well as the other issues.

JUSTICE SCALIA: And your grievance here is not just that you were punished for this violation, but you don't think you should be subject in the future to this provision at all.

MR. BARAN: Yes, that is correct.

JUSTICE DAVID SOUTER: For purposes of the counterclaim, is it your position that subsection (d) covers any expenditure that the party might make which is not a coordinated expenditure?

MR. BARAN: That is the interpretation of the statute that we have agreed with the Government on, that this limitation as it was intended, and certainly as it is applied by the Federal Election Commission, applies to both coordinated contributions which are, in fact, coordinated with the candidate and also contributions that may not factually be proved to be coordinated.

JUSTICE SOUTER: Well, I thought the Government's position was that all of your expenditures were coordinated.

MR. BARAN: As a de jure matter, yes.

JUSTICE SOUTER: Yes. Well, do you agree with that?

MR. BARAN: Well, we concur with the congressional judgment that a de jure coordination is good policy, because it precludes what would otherwise

JUSTICE SOUTER: No, but I just want to know what your position is in the litigation under your facial challenge. Do you agree with the Government that any expenditure you might make that could be subject to subsection (d) is a coordinated expenditure?

MR. BARAN: As a matter of law, yes. As a matter of fact, no.

JUSTICE SOUTER: Well -- I'm not quite sure where I go from there.

MR. BARAN: Well, we -- JUSTICE SOUTER: If it's a matter of -- (Laughter.)

JUSTICE SOUTER: If you agree that it's a matter of law, it is, what's left?

MR. BARAN: Well, we have what everyone seems to acknowledge is a unique relationship with candidates. It's unlike other --

JUSTICE O'CONNOR: Yes, but I thought you took the position here that this wasn't a coordinated expenditure. It was at a time when there wasn't even a nominee, and it was an independent expression of viewpoint.

Now, I understood from your briefs that was your position. Have you given that up?

MR. BARAN: We have pointed out in our briefs, Justice O'Connor, that whether -- there was no inquiry by the Federal Election Commission as to whether or not this particular expenditure was coordinated.

JUSTICE SOUTER: No, but this is the facial challenge. It doesn't matter. For purposes of your facial challenge under (d), do you take the position that every expenditure is a

-- every expenditure that you might make, subject -- that could be subject to that as a matter of law is a coordinated expenditure?

MR. BARAN: We accept that proposition, Justice Souter.

CHIEF JUSTICE REHNQUIST: Well, Mr. Baran, you can't just walk in off the street and make a facial challenge to a statute. You have to show that the statute affects you in some way, certainly.

MR. BARAN: Well, I don't believe there's any dispute that my client, the Colorado Republican Party, wishes to and indeed does engage in express advocacy in support of its candidates.

CHIEF JUSTICE REHNQUIST: But you say even though we find the statute wouldn't apply to the activities that you've been challenged on here, nonetheless you can challenge it facially?

MR. BARAN: I believe that the declaratory judgment procedure has afforded parties -- allows them to raise a claim that seeks

JUSTICE REHNQUIST: Yes, but you have to have some sort of standing to challenge a statute even facially.

MR. BARAN: Well, we are a State committee, as defined by this statute, which specifically applies to State political parties and specifically limits our ability to spend money for some defined speech. Now, the --

JUSTICE SCALIA: In this case you did not name -- you did not name the Democratic candidate that you were opposing because the Democratic candidate hadn't been -- or the Republican candidate that you were favoring because the Republican candidate hadn't even been named yet, isn't that right?

But in a future case, you might want to go beyond what you did in this case and actually favor a particular Republican candidate, isn't that right?

MR. BARAN: That was the claim in the district court when we made the --

JUSTICE SCALIA: And this provision would prevent it.

MR. BARAN: I don't think there's any dispute that this provision would apply to us or any other State committee that wished to engage in covered speech.

JUSTICE SCALIA: Even if you won -- even if you won with respect to the as-applied challenge.

MR. BARAN: Yes.

JUSTICE SCALIA: Even if you won with that, you'd still be subject to the limitation that you cannot support a Republican candidate except within the limitations of 421(d).

MR. BARAN: That is correct.

JUSTICE SOUTER: But even if you made the expenditure that Justice Scalia referred to, you still take the position that it may be treated, as the Government says, as a coordinated expenditure.

MR. BARAN: Yes. Yes, Justice Souter.

JUSTICE SOUTER: Does it follow from that -- and I'm not sure that I'm understanding the terms that everybody uses, so forgive a question that maybe I shouldn't have to ask, but does it follow from your position that if everything that you might expend should be treated as a coordinated expenditure, that therefore every expenditure you make should be treated for constitutional purposes as a contribution to someone?

MR. BARAN: It's our position that it should be evaluated in two ways. One is, of course, what is it -- how is it labeled under the statute and, of course, Congress has provided certain labels which may, in fact, have --

JUSTICE SOUTER: No, but I thought we've gotten beyond. I thought we've gotten to the point of your saying, any such expenditure which could be covered by (d), about which we are complaining in the facial challenge, is a coordinated expenditure.

So taking that as the point from which the question starts, does it follow from that that every expenditure in question here should be treated for constitutional purposes as a contribution to someone?

MR. BARAN: It should be treated for constitutional purposes under the strict scrutiny that this Court requires, whether --

JUSTICE SOUTER: Well, how about a yes or no answer? Should it be treated as a contribution or not?

MR. BARAN: We don't believe that it should be treated as a contribution in terms of a shorthand resolution of whether or not this satisfies First Amendment --

JUSTICE SOUTER: Then explain to me the sense of coordinated expenditure that you're using, because I take it you are not using coordinated expenditure to mean coordinated with a particular named candidate, because at the time in question here, and I suppose at other times, there won't be one, so in what sense is it a coordinated expenditure?

MR. BARAN: I believe the answer, Justice Souter, is that it's a coordinated expenditure by virtue of the predicament or situation that political parties in -- are in that no one else is in.

JUSTICE SOUTER: No, but tell me what you mean by coordinated expenditure. Define the term as you are using it, and as you understand the Government is using it.

MR. BARAN: Well, as I'm using the term, it can be in two contexts, because they are used interchangeably. One is a reference to a factual determination under a provision of section 441a as to whether or not there has been consultation with a candidate and coordination with a candidate. At the same time --

JUSTICE SOUTER: But that didn't happen in this case, I take it.

MR. BARAN: Er --

JUSTICE SOUTER: There wasn't any candidate.

MR. BARAN: There were three nameless candidates which were referred to in the record, and which are cited in the passages of the Government --

JUSTICE SOUTER: Well, would it be proper in this case, then, and hence in considering the facial challenge, to consider the expenditure as being coordinated with them and to treat them as candidates?

MR. BARAN: Yes, Justice --

JUSTICE SOUTER: Would that be fair?

MR. BARAN: Yes, I think --

JUSTICE SOUTER: All right. If that is fair, then, and that's the sense in which you are using coordinated expenditure, then why isn't it the case that every expenditure that would be subject to your facial challenge is one which for constitutional purposes should be treated as a contribution, from which it would follow that, in judging the facial validity of the statute, we're really talking about a statute that regulates contributions rather than expenditures. Maybe there's some point in the logic that I'm going astray, but I don't see where it is.

MR. BARAN: I don't believe that the contributions-expenditure dichotomy that's articulated in Buckley falls neatly into this type of situation -- by virtue of our -

JUSTICE SOUTER: I'm just having trouble understanding the argument, because I thought you had -- you have agreed that it's a coordinated expenditure, that it's coordinated in the sense that it is to be attributed at least to the three, or perhaps to the ultimate winner of the three, and I don't see, once you get to that point, why we're not, for constitutional purposes, talking about contributions, and hence the challenge goes to -- is a challenge to a limit on contributions.

I'm just not understanding the terms of the discourse.

MR. BARAN: It can be viewed in that light, Justice Souter. It does not result in a conclusion as to the constitutionality of such a restriction.

JUSTICE SOUTER: Well, it -- I'm not saying what the conclusion is.I'm just saying, what is the problem about which we must come to a conclusion, and it seems to me that, based upon the premises that you agree to, it must be a problem about contributions.

MR. BARAN: I would say that it could be in the same context as a limit by -- on a candidate which, of course, was reviewed by this Court in Buckley, and whether the candidate spends his or her own money, or whether a candidate does it in coordination with his or her campaign committee doesn't seem to have any constitutional significance once the analysis is conducted of strict scrutiny regarding what kind of speech and what kind of spending is affected by the restriction.

JUSTICE SCALIA: We reserved this precise question in Buckley, did we not?

MR. BARAN: I believe that is correct, Justice Scalia.

JUSTICE SCALIA: So evidently we did not deem that, if it is considered a contribution, that's an end of the matter.

MR. BARAN: That would be our position and, obviously, our hope, Justice Scalia. The only analysis of this provision in Buckley was with respect to a Fifth Amendment equal protection claim.

JUSTICE SOUTER: I take it it's your position that even if it is treated as a contribution, the limit is still unconstitutional. I'm not suggesting that you give your case away, necessarily, by doing that, but is it fair to treat it as a contribution for analytical purposes here, based on your premises?

MR. BARAN: I think it presents difficulty either way because of the nature of the party, the nature of what is being limited here, and it's still -- there's no other participant in political debate, or politics, that is in our shoes, none. No corporation, no political action committee, no individual contributor.

JUSTICE SCALIA: Not only not a political action committee. Why do you differ from a political action committee?

MR. BARAN: They do not nominate candidates. There is a legal and substantive distinction between political parties and other participants.

Now, that distinction doesn't necessarily automatically lead to a particular constitutional result, but it is a difference that I believe must be acknowledged, and --

JUSTICE SCALIA: So it's like a candidate expenditure, you're saying.

MR. BARAN: I believe the closest analogy to this limit is with respect to the relationship of a candidate to his or her own campaign, and the campaign is the candidate's own effort.

In this case, in fact, we are being portrayed as, I think one of the amicis called us a joint venturer with the candidates, which is --

JUSTICE RUTH BADER GINSBURG: But there's this difference, is there not, Mr. Baran, that one who contributes to the candidate is not thereafter blocked from also contributing to the party, so you can't just put them all in the same pot.

MR. BARAN: I believe that there -- the candidates are -- in their campaigns have to raise their money subject to contribution limits and all the same prohibitions.

JUSTICE GINSBURG: If I cede my -- if I make up to the limit my contribution to the candidate I can nonetheless make an independent contribution to the party without exceeding the candidate limit.

MR. BARAN: Only if you do not designate or condition your contribution to the party, and there is a specific provision -- that says that you cannot go to the party and say, I would like to give you now my $5,000, and I would like it to be used only for the benefit of Candidate Smith, who already has received my $1,000 contribution.

JUSTICE GINSBURG: But let's assume we're already into the election season, the candidate has been nominated, is being sponsored by the party, I make my contribution to the candidate, I can make another contribution to the party.

MR. BARAN: As a statutory matter, Justice Ginsburg, I believe that this restriction on contributions of that sort apply at all times, and cannot be earmarked for the benefit of any candidate without counting towards the contributor's $1,000 contribution limit.

JUSTICE GINSBURG: Yes, but I'm just trying to establish the basic point that they're not one and the same. The party, you can contribute to the party, unrestricted, and to the candidate and you're not estopped, because you have contributed to the candidate, from also contributing to the party.

MR. BARAN: That is correct.

JUSTICE SCALIA: But there's a limit on the party.

MR. BARAN: There is a limit -- it was --

JUSTICE SCALIA: Isn't there a limit on the amount you can give to the party?

MR. BARAN: Yes, there are limits. They were imposed on parties in the 1976 amendments. There is a $5,000 annual limit on any individual or political committee contribution to my client, the State party. There is a category of national party committees that have a higher limit, $20,000.

All of those contributions from any individual are further subject to an annual $25,000 limit, so if, in the hypothetical case that's been advanced in some of the briefs, an individual contributed $20,000 to a national party committee, that individual may not contribute more than $5,000 additional dollars through the rest of the year for all political purposes relating to Federal elections.

JUSTICE ANTHONY KENNEDY: It does remain under your theory that -- you say the political party is unique. In response to Justice Scalia's question, it's different from a PAC because you nominate candidates.

Suppose four or five PAC's put up a candidate in a primary and backed that candidate for the party, and maybe the institutional party leaders might prefer someone else. Why couldn't it be said that they are nominating a candidate?

I'm not -- I'd like you to just explore for me a little bit more this distinction you make between the party on the one hand and the PAC on the other, because you see, where your reasoning would take us, it could very well be that we'd have to strike down the limits on spending by PAC's as well.

MR. BARAN: I don't believe that is the case, Justice Kennedy. A political party is separately defined. It has to meet separate criteria legally.

Not only in the Federal Election Campaign Act, but under virtually every State law, there are provisions that specify what a party is, and a party obviously has to have some continuity, and it must have some demonstration of support. It must have nominated candidates, which candidates then have attracted some level of voter support and, in fact, if that doesn't happen, the parties either as a practical matter go out of existence, or under virtually every State law, whoever they nominate do not automatically qualify for the ballot, so there is an entire statutory body of law at both the Federal and State level that deals with parties differently.

And that difference is accountable for the fact that, unlike any other group, they join together, they call themselves something, they select their members to run for office, and they present them to the public.

And what this statute does is, it says, well, once you have done all that, and you want to tell not just the public but you want to even tell party members why they should support the candidates you have nominated, the Federal law says you can only do it up to a limit, and thereafter you have to stop --

JUSTICE KENNEDY: But maybe it should work the other way. If the party has all those attributes of what we can loosely call a State actor, perhaps it should be subject to more restrictions, quite properly so, than a group of citizens who form a PAC.

MR. BARAN: I'm not aware of any precedent that characterizes political party speech as the State's speech, in that we are actually speaking for ourselves and our adherents, and hopefully with the support of the candidates who have agreed to associate with us and to run for public office.

JUSTICE KENNEDY: But that's even more true of private groups, organizations that contribute through PAC's, is it not?

MR. BARAN: Well, each group is going to have to be evaluated in terms of how they relate to the compelling Government interest that is being advanced to justify what everyone has to acknowledge is a restriction on our speech, and to that extent, is the relationship of a political party in terms of its activities different than that of a PAC, is it different from that of a corporation or a union or an individual contributor? And our position is that the answer has to be yes, it clearly is different, and why is because their whole purpose for being is to engage in political activity, to advance a common philosophy, and to nominate candidates who necessarily are part of the party.

They're party members, and we present them. Now, what the statute then does is says, well, unlike even corporations, unlike unions, unlike any other association in America, when it comes to communicating on political issues with your own members, you become subject to this limit and, in addition, if you start communicating --to the public you become subject to this limit.

JUSTICE SCALIA: In exchange for not being subject to the other limit -- and you want to get out of this one and not get into the other one, right?

I mean, there are other limits that apply to PAC's which the Government has tried to present its case as presenting that one --

MR. BARAN: Well, we are put in the --

JUSTICE SCALIA: It sets up a separate limit for political parties which is different from the limits that apply to PAC's.

And you want to get out of this one but not get into the other one. Will you be happy if we put you in with the PAC's? (Laughter.)

MR. BARAN: Obviously not, Justice Scalia, and the reason is that --

JUSTICE SCALIA: Well then, you really can't paint yourself as being so much put upon. I mean, maybe more put upon than a political party ought to be.

You can say that, but you can't really paint yourself as being in an even worse position than PAC's.

MR. BARAN: I believe that we are. In fact, we would be better off if we called ourselves a union and called every member of the Republican Party a union member.

Then we would be able to spend unlimited, undisclosed amounts of money in our partisan communications with our members and then, in addition, we could then, as a union party, create a political action commission -- committee which in addition can then raise voluntary donations to fund those political activities which may include unlimited independent expenditures.

What I have just described is speech activity that is provided to that element of unions or corporations with respect to their stockholders and management, but comes subject to this limit.

Nobody else is in the predicament where they have no alternative, legally, to some form of unlimited partisan expression, either with their core constituency of members or with respect to the public in general, as would be the case with independent expenditures.

JUSTICE GINSBURG: Mr. Baran, there's a basic question I wonder if you would indulge, and that is, you have conceded, I think, that the statute calls this a coordinated expenditure, and it ranks it specifically as a contribution.

In your uneasiness in answering what this animal was, are you suggesting to this Court that it ought to rethink the distinction between contribution and expenditures, or are you willing to go along with that and say, even though it's a contribution, it's still unconstitutional?

MR. BARAN: I believe that even as a contribution under this situation, the Government has not justified this burden, and it would have to be declared unconstitutional. I wish to reserve the balance of my time for rebuttal.

CHEIF JUSTICE REHNQUIST: Very well, Mr. Baran. General Days, we'll hear from you.

ORAL ARGUMENT OF DREW S. DAYS, III ON BEHALF OF THE RESPONDENT GENERAL DAYS: Mr. Chief Justice, and may it please the Court:

I wanted to take a few minutes to just clarify the scheme that's at work here under the campaign act.

Under the act, an expenditure is defined as something that's extended for purposes of influencing an election, and expenditures are considered coordinated expenditures where a political party is concerned, and if they are coordinated expenditures, then they are viewed as contributions, which would then be covered by the contribution limits and the doctrines that this Court has announced.

The petitioners have accepted this scheme, and accepted that their expenditures should be viewed as coordinated expenditures, so they've accepted this as a theoretical matter.

But I would like to point out also that on this record there's evidence of actual coordinated expenditures.

The party chairman in this case admitted that even though there wasn't a Republican candidate at the time, that he was coordinating with all three Republican candidates, and certainly the Federal Election Commission has held for some years --

CHIEF JUSTICE REHNQUIST: If there was no candidate -- you say there was no candidate nominated, but the party chairman was coordinating with all three candidates. You mean putative candidates, or --

GENERAL DAYS: No, they were candidates for the nomination of the party to run for the Senate against the already declared Democratic candidate.

JUSTICE REHNQUIST: So the Republican Party in power had not nominated anyone, but several people were angling, or seeking the nomination.

GENERAL DAYS: That's correct, and the Federal Election Commission has pointed out that there's nothing in the act that requires that there have been a nominee selected before this principle applies. The statute itself refers to candidates, it does not refer to nominees, and there are parts of the statute where the Congress has used nominee when it intended to make that point.

That's not the case in this particular situation. So we're -- in analyzing this particular situation, faced with a coordinated expenditure that is a contribution, it's a form of contribution, it strikes us that the petitioners have refused to accept, Justice Ginsburg, the distinction that this Court has drawn for many, many years, since Buckley, between limiting contributions and limiting expenditures. As this Court has said, there's a fundamental constitutional difference between those two types of limitations.

JUSTICE SCALIA: But the party's point here is that if you regard it as an entirely separate entity from the candidate, yes, you can view it as a contribution, but the party is itself running, in a way. The party engages in the election, and viewed at from -- you know, viewed in that light, it constitutes an expenditure.

To be sure, it's coordinated with the candidate. They're sort of saying the party and the candidate are one.

GENERAL DAYS: Well, I understand their position, but this Court has held that if we're talking about contribution limits, Congress had a compelling justification for imposing such limitations in order to prevent corruption or the appearance of corruption. So the question is, are the limitations that are imposed on coordinated expenditures in the form of -- or contributions in the form of coordinated expenditures by parties subject to that same type of analysis --

JUSTICE SCALIA: How much can I buy --

GENERAL DAYS: -- or in the same compelling applications.

JUSTICE SCALIA: How much can I buy for $20,000, given to the Colorado Republican Party with no strings attached?

GENERAL DAYS: What do you mean, how much can you buy?

JUSTICE SCALIA: What quid pro quo? We're talking corruption here. I have to give the Colorado Republican Party $20,000 -- that's the limit, right, 20 thou, and -- no, not 20 thou, 5 -- 5 thou, I'm told.

GENNERAL DAYS: Five thousand to the party, 20,000 to the national --

JUSTICE SCALIA: To the national, okay. I give 5,000 to the Colorado Party, no strings attached. They can give it to any candidate at all. What do you think I can purchase for that?

GENERAL DAYS: Well, I --

JUSTICE SCALIA: I don't think too much.

GENERAL DAYS: I'm not sure that I can tell you as a factual matter, but I think the point is, 1) we're talking about corruption as defined by this Court.

What this Court said was that corruption is a subversion of the political process. Elected officials are influenced to act contrary to their obligations of office by the prospect of financial gain to themselves or the infusions of money into their campaigns.

JUSTICE O'CONNOR: But I would think it's quite diffused if it flows to the party without designation. You're --

GENERAL DAYS: Well, Justice --

JUSTICE O'CONNOR: It's a step removed, isn't it, from anything that we've upheld? You have to acknowledge that.

GENERAL DAYS: I do acknowledge that, but this Court in the California Medical Association case was confronted with the same argument, that the PAC there served as a buffer, or a filter, between contributions by the medical association to the candidate, and this Court rejected that argument and nevertheless saw that as a problem for preventing evasion of the limitations on individual contributions.

CHIEF JUSTICE REHNQUIST: But in Massachusetts Citizens for Life the Court narrowed a reading of the statute because it felt that not-for-profit corporations were in a different position than corporations for profit.

GENERAL DAYS: Yes. Yes, Mr. Chief --

CHIEF JUSTICE REHNQUIST: So we have accounted for differences in -- factual differences with -- either -- different readings of the statute.

GENERAL DAYS: Mr. Chief Justice, I respectfully disagree. I think that what this Court was addressing in the Massachusetts Citizens for Life was the question of now expenditures should be defined, and what this Court concluded was, 1) expenditures in the form of independent expenditures should be viewed as covered by the act only where there was express advocacy, but there was no treatment of the question of limitations on contributions. What we're talking about here -- are limitations on contributions.

CHIEF JUSTICE REHNQUIST: That construction was given because a nonprofit corporation was involved. Previously it had appeared that corporations generally were subject to this general rule.

GENERAL DAYS: That's certainly correct, but Mr. Chief Justice, what the party -- what the petitioners are arguing for here is an unlimited right to spend funds that are coordinated either in fact or in theory, without any of the limitations that presently exist under the act.

JUSTICE GINSBURG: General Days, I just -- one part is cloudy to me about what falls within coordinated expenditures that equal contributions.

Suppose before Wirth announced his candidacy for the Senate, but he's in Congress, and the Republican Party thinks, well, this guy may some day run, so they do the same kind of advertizing.

GENERAL DAYS: Yes.

JUSTICE GINSBURG: But he -- not only isn't there any Republican candidate, Wirth himself hasn't declared himself as in the ring for the Senate. What would such an expenditure be then?

GENERAL DAYS: My reading of that, given what the Federal Election Commission has done up to this point, is that that would not be viewed as covered by this particular provision.

The fact that Wirth might at some point become a candidate does not mean that the party can't comment on issues that affect his discharging of his responsibilities as a representative of Colorado, or a district in Colorado in the United States House of Representatives.

JUSTICE GINSBURG: So what is the line at which this statute starts to run? Is it when either party has a declared candidate, not yet nominated but declared?

GENERAL DAYS: Well, Justice Ginsburg, I don't know whether there's any precise temporal point, but one can imagine an ad run by the party with respect to Tim Wirth that says, we disagree with Tim Wirth's position and by the way, he's likely to run for the Senate and therefore we want you to know about this.

It seems to me that the inclusion, even though it might be out of the structure of the election framework, would nevertheless be focused on an election, and that's one of the things that's important about this particular ad, Wirth Facts Number 1. It not only talks about Tim Wirth's positions with respect to defense and the balanced budget, it makes specific reference to the fact that he's running for the Senate. It struck the Commission that this was not a difference in degree, but a difference in kind insofar as the act was concerned.

JUSTICE SOUTER: General Days, isn't your argument broad enough, though, that if the morning after this senatorial election was over the Republican Party in Colorado started running advertisements generally favoring Republicans and disfavoring Democrats -- there's not going -- there isn't going to be another election for at least 2 years.

GENERAL DAYS: Yes.

JUSTICE SOUTER (?): Isn't it your position, or the FEC's position that that would still be a coordinated expenditure?

GENERAL DAYS: No, it would not. In this regard --

JUSTICE SOUTER (?): Then how do we draw this line, because I mean, I thought your answer to Justice Ginsburg might be, well, there's no line to be drawn, but if there is going to be one to be drawn, how do we draw it, or how does the FEC draw it?

GENERAL DAYS: The Commission has attempted to deal with this issue, and we refer to it on, I believe, page 3 of our brief. There's something called generic communications

-- which say, vote Republican, support the Republican Party --

JUSTICE O'CONNOR: Yes, now, are those --

GENERAL DAYS: -- get our candidates in.

JUSTICE O'CONNOR: Are those independent, or are they to be treated as coordinated?

GENERAL DAYS: They're viewed as expenditures but they're not coordinated, because there's no one to be coordinated with.

JUSTICE O'CONNOR: Exactly, so what do we do if we think there is such a thing, there is such an animal -- contrary to what your opponent here says today, suppose we think there is such a thing as an independent party expenditure, there is such an animal, and that they can't be constitutionally limited, do we narrow the construction of 441a(d)? What do we do?

GENERAL DAYS: Justice O'Connor, I think that the act already recognizes that there are matters that can be addressed by the party that are not regarded as coordinated expenditures, money for get-out-the-vote slate cards, ballots, and things of that kind, which the act does not even regard as contributions or expenditures --

JUSTICE SOUTER: But this sounds like the express --

This sounds like the express advocacy theory, which you don't want us to adopt.

GENERAL DAYS: No. We don't think the express advocacy standard is the correct one, because express advocacy --

JUSTICE SOUTER: But the examples you're giving are examples that would not be acts of express advocacy. You know --

GENERAL DAYS: That's correct. QUESTION: Get out the vote. GENERAL DAYS: Yes.

CHIEF JUSTICE REHNQUIST: Well, what about the case, supposing the day after the election Congressman X, a Democrat, is reelected in Colorado, and the Republican Party publishes an ad saying, we didn't work hard enough, let's get him in the next election.

GENERAL DAYS: I think -- well, that's a very difficult one to resolve, but I think that this would be a situation where it was so distant from the electoral cycle that that might not fall within the limits. I think the mention of the election --

The mention of the election would push it in terms of what the Commission has viewed more on the side of being a coordinated expenditure in connection with the campaign than otherwise.

JUSTICE SOUTER (?): Wouldn't it be easier, at least, to resolve if we did adopt the express advocacy limitation, because in that case, in the Chief Justice's example, you would be engaging in express advocacy for a particular individual who is at least assumed to be a candidate next time around, and so that would be an easier problem to resolve, and --

GENERAL DAYS: Well --

JUSTICE SOUTER (?): May I just ask kind of a broader question -- of which this is just an example. If we adopted the express advocacy limitation, then wouldn't the problem that concerns Justice Ginsburg, Justice O'Connor and me disappear, because we really wouldn't have the kind of line-drawing problem that we would have on your view absent the express advocacy limitation.

GENERAL DAYS: It might be clearer, but there are other clear rules that this Court could adopt. It could say that any ad that mentions a clearly identified candidate with nothing else about electioneering message, would certainly be a coordinated expenditure.

JUSTICE SCALIA: As I understand the proposal that Justice Souter makes, this would allow the Republican Party of Colorado to spend as much as it wanted on negative ads, right, but --

GENERAL DAYS: No, I don't think that's correct. Negative ads that would be talking about --

JUSTICE SCALIA: When you say --

GENERAL DAYS: -- a specific candidate, which said don't vote for the Democratic candidate? That would not --

JUSTICE SCALIA: Oh, I see --

GENERAL DAYS: That would be express advocacy.

JUSTICE SCALIA: I thought the discussion was talking about an identifiable candidate that the Republican Party is supporting. By an identifiable candidate you mean, on either side.

GENERAL DAYS: Yes, absolutely.

JUSTICE SCALIA: Even if you're just opposing the Democrat.

GENERAL DAYS: Absolutely. Absolutely.

JUSITCE GINSBURG: General Days -- I think there are two things that seem to be getting blended that should be kept separate.

You are not questioning -- you say the statute doesn't cover speech by the party on issues unrelated to an election campaign.0

GENERAL DAYS: That's correct.

JUSTICE GINSBURG: And therefore you never get -- with respect to items unrelated to a campaign, you never get to anything about express advocacy because it's simply not covered.

GENERAL DAYS: Well, that's right, and also --

JUSTICE GINSBURG: So to get into the box, first of all it has to be in connection with a campaign.

GENERAL DAYS: Yes.

JUSTICE GINSBURG: That answers in good part Justice Souter's question.

GENERAL DAYS: Well, it does, and it also is talking about contributions. This Court has never adopted the express advocacy standard with respect to contributions, but rather with regard to expenditures.

JUSTICE BREYER: Can I ask one question in respect to that, focusing on expenditures for a person -- Yes. but independent, really independent --

GENERAL DAYS: Yes.

JUSTICE BREYER: -- forgetting what the law says. Vote for X. Don't vote for Y. He's a good Republican, he's a good Democrat, or -- I'm focusing on that.

I take it -- and I don't understand the constitutional basis for the distinction. Under the First Amendment, what would the theory be? An individual, if he's really independent, can spend as much as he wants.

GENERAL DAYS: Yes.

JUSTICE BREYER: A PAC, if he's really independent, can spend as much as he wants, but a political party, the function of which is to help democracy by translating people's wishes into a Government, cannot spend anything. Now, what's the -- if I've stated that correctly, what's the justification under the First Amendment for that?

GENERAL DAYS: The justification, Justice Breyer, I think is reality, that everyone recognizes that it's inconceivable to think in terms of a party making a truly independent expenditure independent of the candidate.

JUSTICE BREYER: Right, so which way does that cut?

GENERAL DAYS: Well, I think it cuts in terms of 1) justifying the view that any expenditure by a party is a coordinated expenditure --

JUSTICE BREYER: But which way does that cut? If you can't draw the line, does that mean everything should be treated as if it were a contribution, or does it mean that everything should be treated as if it were an expenditure?

GENERAL DAYS: I think it should be treated as a contribution. The Congress --

JUSTICE BREYER: Because?

GENERAL DAYS: Well, the Congress was concerned that if there were unlimited amounts of money used as contributions to candidates during the political process, that that might lead to either actual corruption or the appearance of corruption.

JUSTICE O'CONNOR: But you've told us here today that you think there are some independent expenditures possible for a political party, so that doesn't quite track.

GENERAL DAYS: Well, let me be clear --

JUSTICE O'CONNOR: And also, under this statute I think we are still dealing, are we not, with 441a(d)?

GENERAL DAYS: Yes, we are.

JUSTICE O'CONNOR: I mean, that -- we're trying to interpret -- and then determine, I gather, it's constitutionality -- Yes. -- as interpreted.

GENERAL DAYS: Yes.

JUSTICE O'CONNOR: And subsection (3) prohibits -- says that a national or State or local committee may not make any expenditure in connection with the general election campaign of a candidate for Federal office in a State who is affiliated with such party.

GENERAL DAYS: Yes.

JUSTICE O'CONNOR: Who is affiliated with such party, so in this case it would mean it would have to be a candidate, a Republican candidate for a Federal office for this to even apply.

GENERAL DAYS: Yes. I -- but I guess I'm not following you, Justice O'Connor -- as to how that operates here.

JUSTICE O'CONNOR: That would leave room for lots of independent expenditures, in my view, and maybe it leaves open all negative adds --

GENERAL DAYS: No, I think that --

JUSTICE O'CONNOR: -- against the other party. Conceivably it does, and do we normally try to give statutes a narrow interpretation to avoid striking them down as unconstitutional?

GENERAL DAYS: Yes, but I think, Justice O'Connor, what the Federal Election Commission has done in interpreting the act has 1) concluded that any expenditures are coordinated expenditures and are contributions, and then what we have in 4a(d)(3) is really an authorization for the parties to spend more money than any other entity can, or it could under the regular provisions of the act.

That is, in this case, it could have spent $100,000, the Republican Party, the petitioners, but decided not to do that, so the contribution limit is one that has to be evaluated using the principles that this Court has announced in Buckley and other cases, and what we are arguing is that Congress' limitation on contributions by political parties is consistent with that norm.

Although parties and candidates may share some agreement, there's no reason to think that if, as the petitioners want, there would be unlimited contributions made by the party, that that might not stimulate corruption, or at least the appearance of corruption.

And secondly, if this were an open spigot, so to speak, there might be room for evasion of the individual limits, as this Court was concerned about in Buckley, with respect to the --

CHIEF JUSTICE REHNQUIST: Going back to 441a(d)(3) that Justice O'Connor just asked you about -- it says a political party may not make an expenditure in connection with the general election campaign. It certainly isn't ineluctably clear that general election campaign doesn't mean after both parties have nominated their candidate.

GENERAL DAYS: Mr. Chief Justice, I suppose one could read it that way, but we come back to the role of the Commission in the scheme, and the Commission is entrusted by the act with the responsibility for interpreting the act and enforcing it.

CHIEF JUSTICE REHNQUIST: Well, when you're dealing with the First Amendment, I think some of our cases say that even an agency interpreting the act has to go kind of slowly.

GENERAL DAYS: Well, that's certainly the case, but there's nothing in the act that suggests that the reading that you are proposing is the correct reading.

CHIEF JUSTICE REHNQUIST: But if you ask people on the street what do you mean when you say the general election campaign has started, I think you would say, a lot of people would say, well, it's when the two major parties have chosen their candidates. I think people are talking of the presidential campaign now just in those terms.

GENERAL DAYS: I think the reality that the Congress was looking at and that the Commission has viewed suggests that there should be a larger room for the applicability of 441a(d)(3).

JUSTICE SCALIA: Well, it doesn't say during the general election campaign anyway. It says in connection with.

GENERAL DAYS: Well, and also, when it says --

JUSTICE SCALIA: You can spend money before that campaign begins that's directed to that campaign as far as the text is concerned.

GENERAL DAYS: Yes, I think that's correct, and I mentioned the point that it mentions candidates, not nominees.

I wanted to turn, if I may, to the point that was made about whether this Court has to reach the constitutional issue.

It strikes us that what the petitioners are presenting if, indeed, they win on the view that 4a(d)(3), 441a(d)(3) should not apply is highly theoretical.

This is a political party committee that has never shown an inclination to spend as much money as the statute allows.

Indeed, it's turned back the money on each instance in which it's given that money, so it strikes us that the Court would not have to reach the constitutional issue, and as was suggested by you, Justice O'Connor, wait for another day to resolve this larger issue of its constitutionality.

JUSTICE SCALIA: Excuse me, why don't we have to reach it, even though it's been presented in a separate counterclaim? We -- because there's no standing?

GENERAL DAYS: No, I'm not suggesting that at all. It has to do with, among other things, the prudential determinations by this Court that it should not reach a constitutional issue if it can resolve the case on something short of a constitutional --

JUSTICE SCALIA: But it can't resolve this case. It can't resolve this declaratory judgment request without resolving the constitutional issue.

Do we have the authority to say we're not going to entertain this action for a declaratory judgment because we don't think it's prudent? I don't think we --

JUSTICE STEVENS (?): They specifically allege that they could and would have exceeded the limits but for the statute.

GENERAL DAYS: Yes, but I think that --

JUSTICE STEVENS: You think we should just --

GENERAL DAYS: I think that we have volunteers all over the place, Justice Stevens, who might in some future set of circumstances want to do something that the law does not allow.

JUSTICE SCALIA: So you say they have no standing. That's your argument, that they have no standing because in fact there's no indication that they had any --

GENERAL DAYS: Well, it can be either standing, or it can be the fact that they may have standing in some minimal sense, but that prudential reasons would justify the Court's not resolving this because they are free of whatever coercive forces --

JUSTICE GINSBURG: You say they have no right controversy because they've never -- although in theory they could certainly not give the money to the national party, they --

GENERAL DAYS: That's right. They're volunteer --

JUSTICE GINSBURG: So it's premature.

GENERAL DAYS: Absolutely.

JUSTICE SOUTER: General Days, may I go back -- assuming we reach that constitutional issue, may I go back to the, what is essentially a corruption point?

Let's assume that (d)(3) were to be declared unconstitutional facially. What would the Government's position -- what do you think your position could be under the statute if, following that, individuals made $5,000 contributions to the Colorado party and said, we want this $5,000 to be used in X's campaign for the Senate, or Y's campaign for the House? Would the Government have any objection to the party's acceding to those requests?

GENERAL DAYS: Yes. I think that we would then turn to 441a(a), which is the basic statutory provision with respect to contributions and therefore, even if 441a(d)(3) or a(d) were out of the picture, we would nevertheless, if this were a coordinated contribution, have to go back to the central statute.

JUSTICE SOUTER: Well, where does your corruption argument go, because I thought your strongest corruption argument was that if you declare the statute unconstitutional in effect they can make a bypass of the limitation on contributions to candidates, and now you're saying, I think, no, they couldn't do that.

GENERAL DAYS: No. I think that one of the curious things about the position that petitioners have taken in this litigation is that they viewed 441a(d)(3) as a limitation, when in fact it's an authorization, and we think that the legislative history and the statute itself, that is, 441a(d) -- the fact that Congress viewed that as an exception to the otherwise --

JUSTICE SOUTER: Okay, but there then wouldn't be -- then where does the end run argument go? Doesn't that defeat your end run argument?

GENERAL DAYS: Well, the end run argument has to do with the fact that they would be allowed to make unlimited contributions to the candidate, but that does not necessarily follow.

JUSTICE SOUTER: Okay, so that's -- you're not resting your position on that?

GENERAL DAYS: No, but our point with respect to the corruption is that, although the limits of individual contributions and political committee contributions would remain the same, it would be possible to, if you will, focus and target these amounts of moneys in a way that would not be possible.

JUSTICE SOUTER: Well, the parties could. The parties could, right.

GENERAL DAYS: The parties could, and indeed --

JUSTICE SOUTER: Well, but that is -- may I ask you, then, one other question. That assumes that if subsection (3) falls, subsection (1) remains. Is it your position -- Is it your position --

GENERAL DAYS: -- 441a(a).

JUSTICE SOUTER: Pardon me?

GENERAL DAYS: 441a(a) is -- if we're talking about the same provision.

JUSTICE SOUTER: Yes.

JUSTICE O'CONNOR: Your position is that (d) as a whole would have to fall.

JUSTICE SOUTER: That's what I'm getting at, yes.

GENERAL DAYS: Yes.

JUSTICE O'CONNOR: And then you're back to the beginning of the statute.

GENERAL DAYS: That's correct, so --

JUSTICE O'CONNOR: And they're under that tight a prohibition.

GENERAL DAYS: That's correct.

JUSTICE SOUTER (?): That's right, so if (d)(3) falls, (d)(1) falls, too, in your view. You can't pick off (d)(3) alone.

GENERAL DAYS: Oh, of course.

JUSTICE SOUTER: Right.

GENERAL DAYS: Of course. Yes, I'm sorry. I thought you were talking about the major statute.

But going to this question of corruption, the Court has never concluded, nor did Congress, that for example, family members would be likely to seek undue influence with their own family members but nevertheless upheld the limitation on contributions by family members to their own sons and daughters and wives and husbands.

So the point is not necessarily that there would be actual corruption, but the appearance of corruption, and I think that the -- what the statute reflects and what this Court's decisions reflect is that there is a significant corruptive potential in large amounts of money. That is --

JUSTICE SCALIA: I don't understand what you mean by corruptive potential. If you mean that by spending a lot of money for a particular candidate, that is, making a lot of speech on behalf of that candidate, you're likely to promote the ideas that you're interested in --

GENERAL DAYS: I'm not suggesting that.

JUSTICE SCALIA: That's not corruption.

GENERAL DAYS: No, that is -- that is not corruption.

JUSTICE SCALIA: You're going to get back some money for it. You're going to get the guy to do something that will line your pockets -- one way or another.

GENERAL DAYS: Not necessarily line your pockets, line the pockets of your campaign. That is, foster your political career in ways that are contrary to what otherwise would be your best judgment.

I think that is the teaching of Buckley and the other decisions of this Court.

JUSTICE SCALIA: You mean, it is corruption to induce a candidate to support certain philosophical principles by making a donation to them?

GENERAL DAYS: It is not corruption, but I think the difference, Justice Scalia, is in the amount of money.

I think Congress in the campaign act recognized that political parties could exert certain influence on their candidates and on their elected officials and make them do a variety of things.

JUSTICE SCALIA: It's called party discipline.

GENERAL DAYS: Yes.

JUSTICE SCALIA: It's called party discipline --

GENERAL DAYS: They always have, and they always will.

JUSTICE SCALIA: -- and so long as there's no exchange of money, I have never considered it corruption. I've considered it good old-fashioned democratic politics.

GENERAL DAYS: Well, I think that with respect, Justice Scalia, in Buckley this Court rejected the notion that the antibribery statutes would be a way of dealing with this particular problem, and that Congress -- could deal with the situation.

JUSTICE SOUTER: But what is the problem? I mean, you're assuming -- you're assuming the problem. Justice Scalia's question is, there's no problem.

There's no problem when candidates feel sufficiently beholden to a party to act in accordance with the party's philosophy. Where is -- Where is the Government's interest in destroying that relationship?

GENERAL DAYS: It's not destroying that relationship. It stems from the fact that with unlimited amounts of money there is a potential for the parties or other entities forcing a candidate to --

JUSTICE SCALIA: Well, wait a minute.

GENERAL DAYS: -- do things they would not otherwise do.

JUSTICE SCALIA: How about other entities? We're just talking about parties here.

GENERAL DAYS: Yes, but there are limitations on contributions that can be made. What we're talking about here, and what petitioners are urging, is money that in effect goes directly to the candidate in unlimited amounts of money, unlimited amounts.

CHIEF JUSTICE REHNQUIST: Thank you, General Days. Mr. Baran, you have 4 minutes remaining.

REBUTTAL ARGUMENT OF JAN WITOLD BARAN ON BEHALF OF THE PETITIONERS

MR. BARAN: I would like to clarify hopefully a couple of statutory issues that were raised.

JUSTICE SCALIA: Before you get to that, Mr. Baran, let me tell you one thing that's really troubling me. Is it true that it doesn't make a whole lot of difference?

I mean, you complain in your brief and you complain here you can only spend a few pennies a head, and the Solicitor General says you don't want to spend more than that anyway.

Does this make any real difference to party politics in the United States?

MR. BARAN: Any time the decisionmaking of a speaker becomes his or her own decision as opposed to the Government's decision, it matters, and in practical terms this does allow the political parties to make their decisions based on where they think their political speech would be most effective.

JUSTICE SOUTER: As a practical matter, it would give the parties through this form of speech an influence and a control over candidates which in the last few decades they have lost. That's the practical effect, isn't it?

MR. BARAN: It makes them more relevant than they have been in the last couple of --

JUSTICE SOUTER: It gives them clout. Let's -- it gives -- it will give them clout with their candidates, won't it? Isn't that what's really at stake? That's why they want to engage in this kind of speech. You want to restore party discipline.

MR. BARAN: Justice Souter, political parties believe they have a proper role in public debate about campaigns and about issues, and about -- that's what party platforms are about.

That's what nominating candidates are all about, and this section tells the parties they can only engage in that public debate up to a point.

JUSTICE SCALIA: So your answer is yes. Nothing to be ashamed about, party discipline. (Laughter.)

Your answer is yes, you will influence your candidates to support Republican positions more than they otherwise would.

MR. BARAN: Yes.

JUSTICE SCALIA: You're ashamed of that. (Laughter.)

MR. BARAN: I'm too sensitive to perhaps the jargon of some, and I don't mean you, Justice Souter, that, you know, having clout is a pejorative term, and it does allow them to say more and hopefully to have more persuasive effect.

I would point out that with respect to this assertion that this spending is highly theoretical, the record is fairly clear that with respect to the 1986 election cycle the Colorado party spent $1.1 million for all of its activities, so it is theoretically possible, was then, is today, to spend money, if that were the party's decision, for the type of speech in excess of the limits as provided here.

With respect to when an individual is a candidate, which is a very important question raised by Justice Ginsburg,

I point out that the definition of a candidate in the Federal Election Campaign Act is any individual who has raised or spent more than $5,000 in campaign funds.

That means that every person across a street is a candidate under the act almost the day after election and, in fact, Congressman Wirth, before he became a candidate for the Senate, was, prior to that time, between 1984 -- the 1984 election and up to the point where he declared his candidacy for the Senate, he was a candidate for reelection to the House of Representatives.

JUSTICE GINSBURG: Which section defines candidate that way?

MR. BARAN: That is section 431, which is a definitional section of the act, Your Honor, and there is a discrete definition of a candidate. I would also point out that in our --

JUSTICE GINSBURG: Your definition of -- what are the other words? In connection with -- is there a definition of general election campaign?

MR. BARAN: There is not.

CHIEF JUSTICE REHNQUIST: Thank you, Mr. Baran. The case is submitted.