CINCINNATI (CN) — The full Sixth Circuit will determine whether changes in the political landscape allow it to overrule Supreme Court precedent regarding limits on coordinated party spending in federal elections after arguments on Wednesday.
Ohio Senator J.D. Vance, the National Republican Senatorial Committee and former congressman Steve Chabot sued the Federal Election Commission in 2022, seeking to invalidate portions of the Federal Election Campaign Act of 1971 that "limit a party committees' campaign expenditures made in coordination with political candidates who are associated with the political party." They say that these spending limits violate the First Amendment.
U.S. District Judge Douglas Cole, a Donald Trump appointee, agreed in January to certify the Republicans' question of law to the Sixth Circuit on if the act's spending limits are foreclosed — as the commission argues — by existing Supreme Court precedent in Federal Election Commission v. Colorado Republican Federal Campaign Committee (Colorado II), a 2001 decision that upheld the constitutionality of restrictions on coordinated expenditures.
Attorney Noel Francisco of Jones Day in Washington, D.C. emphasized on Wednesday on behalf of Vance and the Republican Senatorial Committee that the Supreme Court's decision in Colorado II applied only to the specific facts of that case.
Francisco cited a footnote in the ruling he said "left the door open" for potential review of as-applied challenges like the one made by his clients.
"You must apply the entire corpus of Supreme Court caselaw," he told the court. "We are not claiming the statute is overbroad, we are saying it is unconstitutional in a number of applications."
Specifically, the attorney argued ad buys by a party — even though they may be approved by a candidate — are separate and distinct from expenses like travel and office personnel.
"Paying for someone's office space doesn't have nearly the same implication for speech as running ads," he said.
U.S. Circuit Judge Richard Griffin, a George W. Bush appointee, disagreed with Francisco.
"Congress reaffirmed the act in 2014. I don't think we can overrule the Supreme Court because the rationale no longer makes sense," he said.
Jason Hamilton, Assistant General Counsel for the commission, took the position that even if the footnote in Colorado II allowed for as-applied challenges, the one presented by the Republican committee does not qualify.
"Their as-applied challenge is a repackaging of their facial challenge. This is not a Venn diagram, it is an eclipse in all but name," he told the panel. "The plaintiffs have provided no concrete examples of something that falls outside of that overlap, and that is their burden."
Francisco argued the "facts on the ground" changed substantially when the Supreme Court issued its 2014 ruling in McCutcheon v. FEC, which struck down aggregate limits on the amount a single person could contribute during a two-year period, and that the rise of super PACs rendered the coordinated party expenditure statute meaningless.
U.S. Circuit Judge Chad Readler, a Trump appointee, picked up the point during the government's argument.
"Are political parties the concern regarding corruption?" he asked Hamilton.
"Political parties remain unique and at an advantage because a super PAC can never coordinate with a candidate like a political party," Hamilton said.
Hamilton highlighted numerous instances of corruption, including the investigation of New Jersey Senator Bob Menendez, who is currently on trial on bribery charges, and said "the record is replete with other examples."
During his rebuttal, Francisco agreed to "spot them all the cited examples of corruption because not a single one of them involves a coordinated party expenditure."
In their brief to the appeals court, the plaintiffs argued the commission "has come nowhere close to carrying its demanding burden to prove that this severe speech rationing complies with the First Amendment."
They described the limits as part of the commission's "prophylaxis-upon-prophylaxis approach" to campaign finance regulation and disputed its claim regarding application of the Colorado II decision.
Putting amendments to the law aside, the Republicans emphasized the nation's high court has determined since the decision that restrictions to coordinated spending must be "narrowly tailored" to prevent corruption, an analysis not considered by the Colorado II court.
In its own brief, the commission accused Vance and the Republicans of gamesmanship and attempting to circumvent the judicial process by relitigating and overturning the Colorado II decision.
"Appellants seek to have this en banc court substitute its judgment for that of the Supreme Court and issue relief that is precluded by Colorado II — as to either the facial or as-applied challenges — [and] such requests must be rejected," it said.
Chief U.S. Circuit Judge Jeffrey Sutton, a George W. Bush appointee, led the en banc panel. Readler and Griffin were joined by U.S. Circuit Judges Karen Moore and Eric Clay, Bill Clinton appointees; Raymond Kethledge and Julia Gibbons, also George W. Bush appointees; Jane Stranch, a Barack Obama appointee; Amul Thapar, John Bush, Joan Larsen, John Nalbandian and Eric Murphy, Donald Trump appointees; and Stephanie Davis, Andre Mathis and Rachel Bloomekatz, Joe Biden appointees.
No timetable has been set for the court's decision.
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