(CN) – The 5th Circuit voted 11-5 to uphold provisions of a federal election law that limited the Republican National Committee’s contributions, including a radio ad, to a candidate’s 2008 congressional campaign.
The RNC and Rep. Anh “Joseph” Cao argued that provisions of the Federal Election Campaign Act (FECA) were unconstitutional and overbroad, because they stifled speech that’s not “unambiguously campaign related.”
The party said it chose not to run a radio ad supporting Cao for fear of violating the law, because it wanted to coordinate the ad’s timing with Cao’s campaign.
The plaintiffs also said the campaign contribution limits were too low and imposed a harsh burden on political speech.
For Cao’s 2008 campaign, the RNC spent the $42,100 it was allowed to spend on coordinated expenditures and maxed out its $5,000 contribution limit.
In a divided opinion, an 11-judge majority of the 5th Circuit in New Orleans disagreed.
“Applying Supreme Court precedent, we conclude that each of the challenged FECA provisions constitutes a constitutionally permissible regulation of political parties’ campaign contributions and coordinated expenditures,” Judge W. Eugene Davis wrote for the majority.
Davis stressed that the RNC’s lawyers had argued only that the government may not restrict the party’s “own speech,” meaning speech that was paid for by the party. The RNC did not take the position that its level of coordination with Cao affected whether the speech could be regulated, Davis said.
But Chief Judge Edith Jones and Judge Edith Brown Clement focused on this very argument in their dissents, saying the Federal Elections Commission can’t suppress Cao’s ad based solely on timing.
“The record clearly presents a narrower controversy — timing-only coordination,” Jones wrote.
In the dissenting judges’ view, time-based coordination is not the same as money-based coordination; the latter can be regulated, while the former cannot.
The majority found it “strange” that the dissenting judges would “take an argument not made in the district court, nor presented to us on appeal … and attempt to raise it like a Phoenix from the ashes.”
Judges Jerry Smith, Jennifer Elrod and Catharina Haynes joined Jones’ dissent. Joining Clement’s dissent were Jones, Smith and Elrod.