The Supreme Court on Tuesday considered a challenge to a federal law limiting the amount of money that political parties can spend in coordination with a candidate for office. During over two hours of oral argument in National Republican Senatorial Committee v. Federal Election Commission, some of the justices were sympathetic to the challengers’ position that the coordinated expenditure limits violate the First Amendment. But with Justice Neil Gorsuch remaining silent throughout the debate, and Justice Amy Coney Barrett asking only one question, it remained difficult to make definitive predictions about the outcome of the case.
Tuesday’s oral argument was not the justices’ first encounter with the coordinated expenditure limits. In 2001, in Federal Election Commission v. Colorado Republican Federal Campaign Committee, the court – by a vote of 5-4 – upheld these limits, over a dissent by Justice Clarence Thomas.
Just over two decades later, four plaintiffs (the National Republican Senatorial Committee and the National Republican Congressional Committee, which focus on electing Republicans to the Senate and House of Representatives, respectively, along with then-Sen. J.D. Vance and then-Rep. Steve Chabot) went to federal court in Ohio, seeking to invalidate the limits. They argued that the limits violate the First Amendment because they prevent the committees from working with the candidates they support to ensure that their advertisements have the same political message. Vance and Chabot also contended that they wanted to be able to accept funds from the Republican Party and discuss the use of those funds in their campaigns.
The U.S. Court of Appeals for the 6th Circuit upheld the limits. Writing for the court, Chief Judge Jeffrey Sutton characterized the challengers’ claims that, since the court’s 2001 decision, the Supreme Court has “tightened the free-speech restrictions on campaign finance regulations,” and that “the terrain of political fundraising and spending has changed,” as “fair points.” But because the Supreme Court has not overruled its 2001 decision, he continued, the 6th Circuit was required to reject the plaintiffs’ challenges.
The NRSC went to the Supreme Court last year, asking the justices to take up the challengers’ case. The Trump administration agreed with them that the Supreme Court should weigh in and reverse, and after granting review, the justices thus appointed Roman Martinez, a former clerk to Chief Justice John Roberts and then-Judge Brett Kavanaugh, to defend the 6th Circuit’s ruling.
As he did in his brief, Martinez on Tuesday urged the justices to throw out the case without ruling on the constitutionality of the limits. He contended that now-Vice President Vance’s claim could not move forward because Vance “has repeatedly denied having any concrete plan to run for office in 2028.” And the NRSC and the NRCC did not have a right to sue or the right to avail themselves of the expedited review that the challengers sought in this case. Moreover, Martinez suggested, there is no real prospect that the FEC would enforce the restrictions against Vance, because Trump has issued an executive order barring the FEC from enforcing the limits. “No one thinks President Trump is going to enforce this law and target his own Vice President,” Martinez said.
But it was not clear whether Martinez’s argument got much traction. Chief Justice John Roberts was skeptical that Vance could not challenge the limits. If Vance asked you for legal advice, he said to Martinez, on whether to violate the coordinated expenditure limits, would you tell him that he could go ahead and do so? Roberts noted that if a different political party were to win the White House later on, it could opt to resume enforcement.
Deputy U.S. Solicitor General Sarah Harris observed that even if the FEC declined to enforce the limits, Vance would still have a right to sue because there is “a very credible risk of enforcement” by private parties – which the statute allows for.
In response to this, Martinez offered another option: a candidate like Vance could go to the FEC seeking an opinion on the law’s legality, which would provide him with a “safe harbor” from efforts to enforce the law against him. But instead, he emphasized, the challengers were asking the Supreme Court for an impermissible “advisory opinion” on the constitutionality of the limits.
Justice Samuel Alito was also dubious about Martinez’s assertion that Vance does not have a right to sue because he does not have “a concrete plan to run.” Candidates always demur about whether they are going to run, Alito posited.
Representing the challengers, Noel Francisco pushed back against any suggestion that his clients’ claims could not go forward. When the court of appeals issued its decision, he emphasized, Vance was still a U.S. senator and therefore the court had the power to review his case. The limits on the availability of expedited review in the court of appeals, Francisco told the justices, don’t affect the Supreme Court’s ability to take up a case.
On the constitutionality of the limits themselves, Francisco urged the justices to strike them down, calling the limits “at war with this court’s recent First Amendment cases.” The Supreme Court, Francisco said, has made clear that the purpose of campaign-finance restrictions must be the prevention of quid pro quo corruption – that is, the exchange of money for action by a public official. But the limits, he asserted, were imposed for a different reason – to limit money in politics.
Francisco insisted that there was no evidence that, without the limits, donors would donate instead to a political party in the hope that they could obtain benefits from a candidate to whom the money would be funneled. Evidence to the contrary, he argued, could be found in the laws of 28 states, which do not limit coordinated expenditures but have not had problems with those expenditures being used to carry out quid pro quos.
Justice Sonia Sotomayor resisted that assertion. Congress enacted campaign-finance laws, she stressed, because of precisely that kind of conduct in the 1970s, when the dairy industry channeled money to then-President Richard Nixon and, in exchange, obtained government subsidies. Sotomayor also alluded to billionaire Elon Musk, describing how President Donald Trump’s biggest donor got a “very lucrative job” in exchange for his support of Trump’s campaign.
Francisco also told the justices that the coordinated expenditure limits were not necessary because other laws, including laws requiring the disclosure of donors and the bribery laws, served as adequate safeguards against quid pro quo corruption.
Representing the Democratic National Committee, the Democratic Senatorial Campaign Committee, and the Democratic Congressional Campaign Committee, which joined the case to defend the limits, Marc Elias questioned the utility of disclosure requirements in ferreting out quid pro quo corruption. Elias, a seasoned election lawyer, told the justices that he spent “more time on the FEC’s disclosure database” that tracks campaign contributions than anyone else in the courtroom but was dubious about whether someone would know where to look in the database for such corruption.
But more broadly, both Martinez and the court’s Democratic appointees focused on a question related to the challengers’ invocation of other campaign-finance regulations as eliminating the need for limits on coordinated expenditures. They pointed out that in McCutcheon v. Federal Election Commission, its 2014 decision striking down the overall caps on an individual’s campaign contributions, the challengers had made a similar argument, citing the coordinated expenditure limits as a backstop against quid pro quo corruption.
Martinez did not mince words, telling the justices that the challengers were “setting up bait-and-switch 2.0” and calling the court’s ruling in McCutcheon “1.0.” “[T]he logic” that the challengers are “asking you to embrace,” he warned the justices, will lead to future challenges to other campaign-finance restrictions, such as the limits on the contributions that donors can make directly to a candidate.
Justice Ketanji Brown Jackson voiced similar concerns. She asked Francisco whether the challengers would “come back and attempt to suggest that” other “guardrails” should go. Citing McCutcheon, she predicted that “we’re going to be back here with the other kinds of limits” and the challengers “making the same kinds of arguments.”
Francisco acknowledged that the challengers were skeptical of campaign-finance laws generally, but he emphasized that they were not challenging other limits in this case.
Alito was less concerned about the future repercussions of a ruling in favor of the challengers, calling it “speculative” that the court would face future challenges to other limits. “[W]e have one provision before us,” Alito told Martinez. Doesn’t the court have an obligation, he queried, to rule on that challenge?
Alito also pressed a point that other justices picked up, asking Francisco about who benefits, and who is harmed, by the limits. Citing what he referred to as the court’s “unfairly maligned” decision in Citizens United v. FEC, which struck down restrictions on independent expenditures by corporations and unions, Alito contended that the court’s decision in that case “level[ed] th[e] playing field” between the corporations that control the national media and smaller groups like Citizens United.
Francisco told the court that as a result of the coordinated expenditure limits, the relative power of super PACS, political action committees that can accept unlimited donations and make unlimited independent expenditures, has “dramatically” increased, while the relative power of political parties has decreased.
Kavanaugh echoed Francisco’s argument. He expressed concerns that campaign-finance laws and the Supreme Court’s decisions have decreased the power of political parties “over the years.”
Harris was less concerned about the effect of a ruling on the political landscape. She told Kavanaugh that the more urgent issue is the First Amendment problem created by campaign-finance restrictions, like the one at issue in this case, “encroaching on truly central campaign speech.” “[L]et the chips fall where they may,” Harris suggested.
Barrett had only one question during Tuesday’s argument, asking Elias why the Democratic National Committee was defending the limits instead of challenging them along with the Republicans. Barrett seemed to suggest that the DNC may have been motivated by partisanship, as she inquired why, “if there isn’t an imbalance in who” the limits “benefits, why would the DNC be here? Like, why would your client be here if it didn’t perceive this to be something that … would benefit the RNC more than the DNC?”
Barrett’s lone question, combined with Gorsuch’s complete silence, made it hard to know exactly how the court is likely to rule. A decision is expected by late June or early July.
