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No.
COLORADO REPUBLICAN FEDERAL CAMPAIGN COMMITTEE and DOUGLAS JONES,
TREASURER, PETITIONERS v.
on writ of certiorari to the united states court of appeals for the tenth circuit
[
Justice
I agree that petitioners' rights under the First Amendment have been violated, but I think we should reach the facial challenge in this case in order to make clear the circumstances under which political parties may engage in political speech without running afoul of 2 U.S.C. § 441a(d)(3). In resolving that challenge, I would reject the framework established by Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam), for analyzing the constitutionality of campaign finance laws and hold that §441a(d)(3)'s limits on independent and coordinated expenditures fail strict scrutiny. But even under Buckley, §441a(d)(3) cannot stand, because the anti corruption rationale that we have relied upon in sustaining other campaign finance laws is inapplicable where political parties are the subject of such regulation.
As an initial matter, I write to make clear that we should decide the Party's facial challenge to §441a(d)(3) and thus address the constitutionality of limits on coordinated expenditures by political parties. Justice Breyer's reasons for not reaching the facial constitutionality of the statute are unpersuasive. In addition, concerns for the chilling of First Amendment expression counsel in favor of resolving that question.
After the Federal Election Commission (FEC) brought this action against the Party, the Party counterclaimed that "the limits on its expenditures in connection with the general election campaign for the Office of United States Senator from the State of Colorado imposed by 2 U.S.C. § 441a(d) are unconstitutional, both facially and as applied." App. 68. Though Justice Breyer faults the Party for not "focus[ing] specifically upon coordinated expenditures," ante, at 17, the term "expenditures" certainly includes both coordinated as well as independent expenditures. [n.1] See 2 U.S.C. § 431(9)(A) ("The term `expenditure' includes . . . any purchase, payment, distribution, loan, advance, deposit, or gift of money or anything of value, made by any person for the purpose of influencing any election for Federal office") (emphasis added). Moreover, at the time the Party filed its counterclaim, all party expenditures were treated by law as coordinated, see Federal Election Comm'n v. Democratic Senatorial Campaign Comm., 454 U.S. 27, 28-29, n. 1 (1981), so a reference to expenditures by a party was tantamount to a reference to coordinated expenditures.
Given the liberal nature of the rules governing civil pleading, see Fed. Rule Civ. Proc. 8, the Party's straightforward allegation of the unconstitutionality of §441a(d)(3)'s expenditure limits clearly suffices to raise the claim that neither independent nor coordinated expenditures may be regulated consistently with the First Amendment. Indeed, that is precisely how the Court of Appeals appears to have read the counterclaim. The court expressly said that it was "analyzing the constitutionality of limits on coordinated expenditures by political committees," 59 F. 3d 1015, 1024 (CA10 1995), under §441a(d)(3).
For the same reasons, the fact that the Party's summary judgment affidavits did not "specifically allege," ante, at 17, that the Party intended to make coordinated expenditures is also immaterial. The affidavits made clear that, but for §441a(d)(3), the Party would spend in excess of the limits imposed by that statute, see App. 159 ("[T]he State Party intends to pay for communications within the spending limits of [§441]. . . . However, the State Party would also like to pay for communications which costs [sic] exceed the spending limits of [§441a(d)], but will not do so due to the deterrent and chilling effect of the statute"), as did the Party's brief in this Court, see Brief for Petitioners 23-24 ("The Colorado Party is ready, willing and able to make expenditures expressly advocating the election or defeat of candidates for federal office that would exceed the limits imposed by §441a(d), but it has been deterred from doing so by the obvious and credible threat of FEC enforcement action").
Finally, though Justice Breyer notes that this is the first Federal Election Campaign Act of 1971 (FECA) case to raise the constitutional validity of limits on coordinated expenditures, see ante, at 18, that is, at best, an argument against granting certiorari. It is too late for arguments like that now. The case is here, and we needlessly protract this litigation by remanding this important issue to the Court of Appeals. Nor is the fact that the "issue is complex," ante, at 18, a good reason for avoiding it. We do not sit to decide only easy cases. And while it may be true that no court has ever asked whether expenditures that are "in fact" coordinated may be regulated under the First Amendment, see ante, at 18, I do not see how the existence of an "in fact" coordinated expenditure would change our analysis of the facial constitutionality of §441a(d)(3), since courts in facial challenges under the First Amendment routinely consider applications of the relevant statute other than the application before the court. See Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973). Whether or not there are facts in the record to support the finding that this particular expenditure was actually coordinated with a candidate, we are not, contrary to the suggestion of Justice Breyer, incapable of considering the Government's interest in regulating such expenditures and testing the fit between that end and the means used to achieve it. [n.2]
The validity of §441a(d)(3)'s controls on coordinated expenditures is an open question that, if left unanswered, will inhibit the exercise of legitimate First Amendment activity nationwide. All Justice Breyer resolves is that when a political party spends money in support of a candidate (or against his opponent) and the Government cannot thereafter prove any coordination between the Party and the candidate, the Party cannot be punished by the Government for that spending. This settles little, if anything. Parties are left to wonder whether their speech is protected by the First Amendment when the Government can show--presumably with circumstantial evidence--a link between the Party and the candidate with respect to the speech in question. And of course, one of the main purposes of a political party is to support its candidates in elections.
The constitutionality of limits on coordinated expenditures by political parties is squarely before us. We should address this important question now, instead of leaving political parties in a state of uncertainty about the types of First Amendment expression in which they are free to engage.
Critical to Justice Breyer's reasoning is the distinction between contributions [n.3] and independent expenditures that we first drew in Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam). Though we said in Buckley that controls on spending and giving "operate in an area of the most fundamental First Amendment activities," id., at 14, we invalidated the expenditure limits of FECA and upheld the Act's contribution limits. The justification we gave for the differing results was this: "The expenditure limitations . . . represent substantial rather than merely theoretical restraints on the quantity and diversity of political speech," id., at 19, whereas "limitation[s] upon the amount that any one person or group may contribute to a candidate or political committee entai[l] only a marginal restriction upon the contributor's ability to engage in free communication," id., at 20-21. This conclusion was supported mainly by two assertions about the nature of contributions: first, though contributions may result in speech, that speech is by the candidate and not by the contributor; and second, contributions express only general support for the candidate but do not communicate the reasons for that support. Id., at 21. Since Buckley, our campaign finance jurisprudence has been based in large part on this distinction between contributions and expenditures. See, e.g., Federal Election Comm'n v. Massachusetts Citizens for Life, Inc. (MCFL), 479 U.S. 238, 259-260, 261-262 (1986); Federal Election Comm'n v. National Conservative Political Action Comm. (NCPAC), 470 U.S. 480, 497 (1985); California Medical Assn. v. Federal Election Comm'n, 453 U.S. 182, 196 (1981) (plurality opinion).
In my view, the distinction lacks constitutional significance, and I would not adhere to it. As Chief Justice Burger put it: "[C]ontributions and expenditures are two sides of the same First Amendment coin." Buckley v. Valeo, supra, 424 U. S., at 241 (concurring in part and dissenting in part). [n.4] Contributions and expenditures both involve core First Amendment expression because they further the "[d]iscussion of public issues and debate on the qualifications of candidates . . . integral to the operation of the system of government established by our Constitution." 424 U. S., at 14. When an individual donates money to a candidate or to a partisan organization, he enhances the donee's ability to communicate a message and thereby adds to political debate, just as when that individual communicates the message himself. Indeed, the individual may add more to political discourse by giving rather than spending, if the donee is able to put the funds to more productive use than can the individual. The contribution of funds to a candidate or to a political group thus fosters the "free discussion of governmental affairs," Mills v. Alabama, 384 U.S. 214, 218 (1966), just as an expenditure does. [n.5] Giving and spending in the electoral process also involve basic associational rights under the First Amendment. See BeVier, Money and Politics: A Perspective on the First Amendment and Campaign Finance Reform, 73 Calif. L. Rev. 1045, 1064 (1985) (hereinafter BeVier). As we acknowledged in Buckley, " `[e]ffective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association.' " 424 U. S., at 15 (quoting NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460 (1958)). Political associations allow citizens to pool their resources and make their advocacy more effective, and such efforts are fully protected by the First Amendment. Federal Election Comm'n v. NCPAC, supra, at 494. If an individual is limited in the amount of resources he can contribute to the pool, he is most certainly limited in his ability to associate for purposes of effective advocacy. See Citizens Against Rent Control/Coalition for Fair Housing v. Berkeley, 454 U.S. 290, 296 (1981) ("To place a . . . limit . . . on individuals wishing to band together to advance their views . . . is clearly a restraint on the right of association"). And if an individual cannot be subject to such limits, neither can political associations be limited in their ability to give as a means of furthering their members' viewpoints. As we have said, "[a]ny interference with the freedom of a party is simultaneously an interference with the freedom of its adherents." Sweezy v. New Hampshire, 354 U.S. 234, 250 (1957) (plurality opinion). [n.6]
Turning from similarities to differences, I can discern only one potentially meaningful distinction between contributions and expenditures. In the former case, the funds pass through an intermediary--some individual or entity responsible for organizing and facilitating the dissemination of the message--whereas in the latter case they may not necessarily do so. But the practical judgment by a citizen that another person or an organization can more effectively deploy funds for the good of a common cause than he can ought not deprive that citizen of his First Amendment rights. Whether an individual donates money to a candidate or group who will use it to promote the candidate or whether the individual spends the money to promote the candidate himself, the individual seeks to engage in political expression and to associate with likeminded persons. A contribution is simply an indirect expenditure; though contributions and expenditures may thus differ in form, they do not differ in substance. As one commentator cautioned, "let us not lose sight of the speech." Powe, Mass Speech and the Newer First Amendment, 1982 S. Ct. Rev. 243, 258.
Echoing the suggestion in Buckley that contributions have less First Amendment value than expenditures because they do not involve speech by the donor, see 424 U. S., at 21, the Court has sometimes rationalized limitations on contributions by referring to contributions as "speech by proxy." See, e.g., California Medical Assn. v. Federal Election Comm'n, 453 U. S., at 196 (Marshall, J.) (plurality opinion). The "speech by proxy" label is, however, an ineffective tool for distinguishing contributions from expenditures. Even in the case of a direct expenditure, there is usually some go between that facilitates the dissemination of the spender's message--for instance, an advertising agency or a television station. See Powe, supra, at 258-259. To call a contribution "speech by proxy" thus does little to differentiate it from an expenditure. See Buckley v. Valeo, supra, at 243" 244, and n. 7 (Burger, C. J., concurring in part and dissenting in part). The only possible difference is that contributions involve an extra step in the proxy chain. But again, that is a difference in form, not substance.
Moreover, we have recently recognized that where the "proxy" speech is endorsed by those who give, that speech is a fully protected exercise of the donors' associational rights. In Federal Election Comm'n v. NCPAC, we explained that
"the `proxy speech' approach is not useful . . . [where] the contributors obviously like the message they are hearing from [the] organizatio[n] and want to add their voices to that message; otherwise they would not part with their money. To say that their collective action in pooling their resources to amplify their voices is not entitled to full First Amendment protection would subordinate the voices of those of modest means as opposed to those sufficiently wealthy to be able to buy expensive media ads with their own resources." 470 U. S., at 495.
The other justification in Buckley for the proposition that contribution caps only marginally restrict speech-- that is, that a contribution signals only general support for the candidate but indicates nothing about the reasons for that support--is similarly unsatisfying. Assuming the assertion is descriptively accurate (which is certainly questionable), it still cannot mean that giving is less important than spending in terms of the First Amendment. A campaign poster that reads simply "We support candidate Smith" does not seem to me any less deserving of constitutional protection than one that reads "We support candidate Smith because we like his position on agriculture subsidies." Both express a political opinion. Even a pure message of support, unadorned with reasons, is valuable to the democratic process.
In sum, unlike the Buckley Court, I believe that contribution limits infringe as directly and as seriously upon freedom of political expression and association as do expenditure limits. The protections of the First Amendment do not depend upon so fine a line as that between spending money to support a candidate or group and giving money to the candidate or group to spend for the same purpose. In principle, people and groups give money to candidates and other groups for the same reason that they spend money in support of those candidates and groups: because they share social, economic, and political beliefs and seek to have those beliefs affect governmental policy. I think that the Buckley framework for analyzing the constitutionality of campaign finance laws is deeply flawed. Accordingly, I would not employ it, as Justice Breyer and Justice Kennedy do.
Instead, I begin with the premise that there is no constitutionally significant difference between campaign contributions and expenditures: both forms of speech are central to the First Amendment. Curbs on protected speech, we have repeatedly said, must be strictly scrutinized. See Federal Election Comm'n v. NCPAC, supra, at 501; Citizens Against Rent Control/Coalition for Fair Housing v. Berkeley, 454 U. S., at 294; First Nat. Bank of Boston v. Bellotti, 435 U.S. 765, 786 (1978). [n.7] I am convinced that under traditional strict scrutiny, broad prophylactic caps on both spending and giving in the political process, like §441a(d)(3), are unconstitutional.
The formula for strict scrutiny is, of course, well established. It requires both a compelling governmental interest and legislative means narrowly tailored to serve that interest. In the context of campaign finance reform, the only governmental interest that we have accepted as compelling is the prevention of corruption or the appearance of corruption, see Federal Election Comm'n v. NCPAC, 470 U. S., at 496-497, and we have narrowly defined "corruption" as a "financial quid pro quo: dollars for political favors," id., at 497. [n.8] As for the means ends fit under strict scrutiny, we have specified that "[w]here at all possible, government must curtail speech only to the degree necessary to meet the particular problem at hand, and must avoid infringing on speech that does not pose the danger that has prompted regulation." Federal Election Comm'n v. MCFL, 479 U. S., at 265.
In Buckley, we expressly stated that the means adopted must be "closely drawn to avoid unnecessary abridgment" of First Amendment rights. 424 U. S., at 25. But the Buckley Court summarily rejected the argument that, because less restrictive means of preventing corruption existed--for instance, bribery laws and disclosure requirements-FECA's contribution provisions were invalid. Bribery laws, the Court said, "deal with only the most blatant and specific attempts of those with money to influence governmental action," id., at 28, suggesting that those means were inadequate to serve the governmental interest. With respect to disclosure rules, the Court admitted that they serve "many salutary purposes" but said that Congress was "entitled to conclude that disclosure was only a partial measure, and that contribution ceilings were a necessary legislative concomitant." Ibid. Finally, the Court noted that contribution caps leave people free to engage in independent political speech, to volunteer their services, and to contribute money to a "limited but nonetheless substantial extent." Ibid.
In my opinion, FECA's monetary caps fail the narrow tailoring test. Addressing the constitutionality of FECA's contribution caps, the Buckley appellants argued:
"If a small minority of political contributions are given to secure appointments for the donors or some other quid pro quo, that cannot serve to justify prohibiting all large contributions, the vast majority of which are given not for any such purpose but to further the expression of political views which the candidate and donor share. Where First Amendment rights are involved, a blunderbuss approach which prohibits mostly innocent speech cannot be held a means narrowly and precisely directed to the governmental interest in the small minority of contributions that are not innocent." Brief for Appellants in Buckley v. Valeo, O. T. 1975, Nos. 75-436 and 75-437, pp. 117-118.
The Buckley appellants were, to my mind, correct. Broad prophylactic bans on campaign expenditures and contributions are not designed with the precision required by the First Amendment because they sweep protected speech within their prohibitions.
Section 441a(d)(3), in particular, suffers from this infirmity. It flatly bans all expenditures by all national and state party committees in excess of certain dollar limits, see §441a(d)(3), without any evidence that covered committees who exceed those limits are in fact engaging, or likely to engage, in bribery or anything resembling it. See Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 689 (1990) (Scalia, J., dissenting) (where statute "extends to speech that has the mere potential for producing social harm" it should not be held to satisfy the narrow tailoring requirement) (emphasis in original). Thus, the statute indiscriminately covers the many conceivable instances in which a party committee could exceed the spending limits without any intent to extract an unlawful commitment from a candidate. Cf. Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 637 (1980) (state may not, in effort to stop fraud in charitable solicitations, "lump" truly charitable organizations "with those that in fact are using the charitable label as a cloak for profitmaking and refuse to employ more precise measures to separate one kind from the other"). As one commentator has observed, "it must not be forgotten that a large number of contributions are made without any hope of specific gain: for the promotion of a program, because of enthusiasm for a candidate, or to promote what the giver vaguely conceives to be the national interest." L. Overacker, Money in Elections 192 (1974).
In contrast, federal bribery laws are designed to punish and deter the corrupt conduct the Government seeks to prevent under FECA, and disclosure laws work to make donors and donees accountable to the public for any questionable financial dealings in which they may engage. Cf. Schaumburg v. Citizens for a Better Environment, supra, at 637-638 (explaining that "less intrusive" means of preventing fraud in charitable solicitation are "the penal laws [that can be] used to punish such conduct directly" and "disclosure of the finances of charitable organizations"). In light of these alternatives, wholesale limitations that cover contributions having nothing to do with bribery--but with speech central to the First Amendment--are not narrowly tailored.
Buckley's rationale for the contrary conclusion, see supra, at 14, is faulty. That bribery laws are not completely effective in stamping out corruption is no justification for the conclusion that prophylactic controls on funding activity are narrowly tailored. The First Amendment limits Congress to legislative measures that do not abridge the Amendment's guaranteed freedoms, thereby constraining Congress' ability to accomplish certain goals. Similarly, that other modes of expression remain open to regulated individuals or groups does not mean that a statute is the least restrictive means of addressing a particular social problem. A statute could, of course, be more restrictive than necessary while still leaving open some avenues for speech. [n.9]
Were I convinced that the Buckley framework rested on a principled distinction between contributions and expenditures, which I am not, I would nevertheless conclude that §441a(d)(3)'s limits on political parties violate the First Amendment. Under Buckley and its progeny, a substantial threat of corruption must exist before a law purportedly aimed at the prevention of corruption will be sustained against First Amendment attack. [n.10] Just as some of the monetary limits in the Buckley line of cases were held to be invalid because the government interest in stemming corruption was inadequate under the circumstances to justify the restrictions on speech, so too is §441a(d)(3) invalid. [n.11]
The Government asserts that the purpose of §441a(d)(3) is to prevent the corruption of candidates and elected representatives by party officials. The Government does not explain precisely what it means by "corruption," however; [n.12] the closest thing to an explanation the Government offers is that "corruption" is " `the real or imagined coercive influence of large financial contributions on candidates' positions and on their actions if elected to office.' " Brief for Respondent 35 (quoting Buckley v. Valeo, 424 U. S., at 25). We so defined corruption in Buckley for purposes of reviewing ceilings on giving or spending by individuals, groups, political committees (PACs), and candidates. See id., at 23, 35, 39. But we did not in that case consider the First Amendment status of FECA's provisions dealing with political parties. See id., at 58, n. 66, 59, n. 67.
As applied in the specific context of campaign funding by political parties, the anti corruption rationale loses its force. See Nahra, Political Parties and the Campaign Finance Laws: Dilemmas, Concerns and Opportunities, 56 Ford. L. Rev. 53, 105-106 (1987). What could it mean for a party to "corrupt" its candidate or to exercise "coercive" influence over him? The very aim of a political party is to influence its candidate's stance on issues and, if the candidate takes office or is reelected, his votes. When political parties achieve that aim, that achievement does not, in my view, constitute "a subversion of the political process." Federal Election Comm'n v. NCPAC, 470 U. S., at 497. For instance, if the Democratic Party spends large sums of money in support of a candidate who wins, takes office, and then implements the Party's platform, that is not corruption; that is successful advocacy of ideas in the political marketplace and representative government in a party system. To borrow a phrase from Federal Election Comm'n v. NCPAC, "[t]he fact that candidates and elected officials may alter or reaffirm their own positions on issues in response to political messages paid for by [political groups] can hardly be called corruption, for one of the essential features of democracy is the presentation to the electorate of varying points of view." Id., at 498. Cf. Federal Election Comm'n v. MCFL, 479 U. S., at 263 (suggesting that "[v]oluntary political associations do not . . . present the specter of corruption").
The structure of political parties is such that the theoretical danger of those groups actually engaging in quid pro quos with candidates is significantly less than the threat of individuals or other groups doing so. See Nahra, supra, at 97-98 (citing F. Sorauf, Party Politics in America 15-18 (5th ed. 1984)). American political parties, generally speaking, have numerous members with a wide variety of interests, Nahra, supra, at 98, features necessary for success in majoritarian elections. Consequently, the influence of any one person or the importance of any single issue within a political party is significantly diffused. For this reason, as the Party's amici argue, see Brief for Committee for Party Renewal et al. as Amicus Curiae 16, campaign funds donated by parties are considered to be some of " the cleanest money in politics. " J. Bibby, Campaign Finance Reform, 6 Commonsense 1, 10 (Dec. 1983). And, as long as the Court continues to permit Congress to subject individuals to limits on the amount they can give to parties, and those limits are uniform as to all donors, see 2 U.S.C. § 441a(a)(1), there is little risk that an individual donor could use a party as a conduit for bribing candidates.
In any event, the Government, which bears the burden of "demonstrat[ing] that the recited harms are real, not merely conjectural," Turner Broadcasting System, Inc. v. FCC, 512 U. S. ___ (1994) (slip op., at 41), has identified no more proof of the corrupting dangers of coordinated expenditures than it has of independent expenditures. Cf. ante, at 11 ("The Government does not point to record evidence or legislative findings suggesting any special corruption problem in respect to independent party expenditures"). And insofar as it appears that Congress did not actually enact §441a(d)(3) in order to stop corruption by political parties "but rather for the constitutionally insufficient purpose of reducing what it saw as wasteful and excessive campaign spending," ante, at 11 (citing Buckley v. Valeo, supra, at 57), the statute's ceilings on coordinated expenditures are as unwarranted as the caps on independent expenditures.
In sum, there is only a minimal threat of "corruption," as we have understood that term, when a political party spends to support its candidate or to oppose his competitor, whether or not that expenditure is made in concert with the candidate. Parties and candidates have traditionally worked together to achieve their common goals, and when they engage in that work, there is no risk to the Republic. To the contrary, the danger to the Republic lies in Government suppression of such activity. Under Buckley and our subsequent cases, §441a(d)(3)'s heavy burden on First Amendment rights is not justified by the threat of corruption at which it is assertedly aimed.
* * *
To conclude, I would find §441a(d)(3) unconstitutional not just as applied to petitioners, but also on its face. Accordingly, I concur only in the Court's judgment.Notes
1 Justice Breyer acknowledges as much when he asserts earlier in his opinion that "the unmodified term `expenditure' " reflects a Congressional intent "to limit all party expenditures." Ante, at 15 (emphasis in original).
2 Justice Breyer's remaining arguments for avoiding the facial challenge are straw men. See ante, at 19 (if §441a(d)(3) were invalidated in its entirety, other FECA provisions that the Party has not challenged might apply to coordinated party expenditures); ante, at 19 (if §441a(d)(3) were upheld as to coordinated expenditures but invalidated as to independent expenditures, issues of severability would be raised). That resolution of the primary question in this case (the constitutionality of §441a(d)(3) with respect to all expenditures) might generate issues not previously considered (such as severability) is no reason for not deciding the question itself. Without suggesting that remand is the only appropriate way to deal with possible corollary matters in this case or that these arguments have merit, I point out that we can, of course, decide the central question without ruling on the issues that concern Justice Breyer.
3 Coordinated expenditures are by statute categorized as contributions. See 2 U.S.C. § 441a(a)(7)(B)(i) ("[E]xpenditures made by any person in cooperation, consultation, or concert, with, or at the request or suggestion of, a candidate, his authorized political committees, or their agents, shall be considered to be a contribution to such candidate").
4 Three Members of the Buckley Court thought the distinction untenable at the time, see 424 U. S., at 241 (Burger, C. J., concurring in part and dissenting in part); id., at 261 (White, J., concurring in part and dissenting in part); id., at 290 (Blackmun, J., concurring in part and dissenting in part), and another Member disavowed it subsequently, see Federal Election Comm'n v. National Conservative Political Action Comm., 470 U.S. 480, 518-521 (1985) (Marshall, J., dissenting). Cf. Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 678 (1990) (Stevens, J., concurring) (stating that distinction "should have little, if any, weight in reviewing corporate participation in candidate elections").
5 See H. Alexander, Money in Politics 234 (1972): "The constitutional arguments against limiting campaign spending also apply against limiting contributions; specifically, it is the right of an individual to spend his money to support a congenial viewpoint . . . . Some views are heard only if interested individuals are willing to support financially the candidate or committee voicing the position. To be widely heard, mass communications may be necessary, and they are costly. By extension, then, the contribution of money is a contribution to freedom of political debate."
6 To illustrate the point that giving and spending in the political process implicate the same First Amendment values, I note that virtually everything Justice Breyer says about the importance of free independent expenditures applies with equal force to coordinated expenditures and contributions. For instance, Justice Breyer states that "[a] political party's independent expression not only reflects its members' views about the philosophical and governmental matters that bind them together, it also seeks to convince others to join those members in a practical democratic task, the task of creating a government that voters can instruct and hold responsible for subsequent success or failure." Ante, at 9. "Coordinated" expression by political parties, of course, shares those precise attributes. The fact that an expenditure is prearranged with the candidate--presumably to make it more effective in the election--does not take away from its fundamental democratic purposes.
7 In Buckley v. Valeo, 424 U.S. 1 (1976), the Court purported to scrutinize strictly the contribution provisions as well the expenditures rules. See id., at 23 (FECA's contribution and expenditures limits "both implicate fundamental First Amendment interests"); id., at 25 (contributions limits, like expenditure limits, are " `subject to the closest scrutiny' ") (citation omitted). It has not gone unnoticed, however, that we seemed more forgiving in our review of the contribution provisions than of the expenditure rules. See, e.g., California Medical Assn. v. Federal Election Comm'n, 453 U.S. 182, 196 (1981) (plurality opinion) (contributions are "not the sort of political advocacy that this Court in Buckley found entitled to full First Amendment protection"). But see id., at 201-202 (Blackmun, J., concurring in part and concurring in judgment) (under Buckley, there is no lesser standard of review for contributions as opposed to expenditures).
8 As I explain in Part III, infra, the interest in preventing corruption is inapplicable when the subject of the regulation is a political party. My analysis here is more general, however, and applies to all individuals and entities subject to campaign finance limits.
9 Justice Stevens submits that we should "accord special deference to [Congress'] judgment on questions related to the extent and nature of limits on campaign spending," post, at 3, a stance that the Court of Appeals also adopted, see 59 F. 3d 1015, 1024 (CA10 1995). This position poses great risk to the First Amendment, in that it amounts to letting the fox stand watch over the henhouse. There is good reason to think that campaign reform is an especially inappropriate area for judicial deference to legislative judgment. See generally BeVier 1074-1081. What the argument for deference fails to acknowledge is the potential for legislators to set the rules of the electoral game so as to keep themselves in power and to keep potential challengers out of it. See id., at 1075 (" `Courts must police inhibitions on . . . political activity because we cannot trust elected officials to do so' ") (emphasis omitted) (quoting J. Ely, Democracy and Distrust 106 (1980)). See also R. Winter, Political Financing and the Constitution, 486 Annals Am. Acad. Pol. & Soc. Sci. 34, 40, 48 (1986). Indeed, history demonstrates that the most significant effect of election reform has been not to purify public service, but to protect incumbents and increase the influence of special interest groups. See BeVier 1078-1080. When Congress seeks to ration political expression in the electoral process, we ought not simply acquiesce in its judgment.
10 See Buckley v. Valeo, 424 U. S., at 45-47 (striking down limits on independent expenditures because the "advocacy restricted by the provision does not presently appear to pose dangers of real or apparent corruption"); Federal Election Comm'n v. MCFL, 479 U.S. 238, 263 (1986) (invalidating caps on campaign expenditures by incorporated political associations because spending by such groups "does not pose . . . [any] threat" of corruption); Federal Election Comm'n v. NCPAC, 470 U. S., at 498 (striking down limits on independent expenditures by political action committees because "a quid pro quo for improper commitments" in that context was a "hypothetical possibility"); Citizens Against Rent Control/Coalition for Fair Housing v. Berkeley, 454 U.S. 290, 297 (1981) (stating that "Buckley does not support limitations on contributions to committees formed to favor or oppose ballot measures" because anti corruption rationale is inapplicable); First Nat. Bank of Boston v. Bellotti, 435 U.S. 765, 790 (1978) (concluding that limits on referendum speech by corporations violate First Amendment because "[t]he risk of corruption . . . simply is not present").
11 While Justice Breyer chides me for taking the position that I would not adhere to Buckley, see ante, at 19-20, and suggests that my approach to this case is thus insufficiently "cautious," ante, at 20, he ignores this Part of my opinion, in which I explain why limits on coordinated expenditures are unconstitutional even under the Buckley line of precedent.
12 Nor, for that matter, does Justice Breyer explain what sorts of quid pro quos a party could extract from a candidate. Cf. ante, at 9.