Sixth Circuit torpedoes Republican First Amendment challenge to coordinated expenditure limits

CINCINNATI (CN) — A nearly unanimous Sixth Circuit upheld U.S. Supreme Court precedent Thursday and rejected calls by Senate Republicans to remove limits on coordinated spending between political parties and their candidates.

Vice Presidential candidate and Ohio Senator JD Vance, former Ohio Representative Steve Chabot and the National Republican Senatorial and Congressional Committees filed the First Amendment lawsuit in 2022 against the Federal Election Commission and claimed changes in the political fundraising landscape necessitated a rethink of certain spending limits.

Standing in the way of elimination of coordinated expenditure limits is the Supreme Court's 2001 decision in Federal Election Commission v. Colorado Republican Federal Campaign Committee (Colorado II), a ruling in which the court aimed "to minimize circumvention of contribution limits."

Chief U.S. Circuit Judge Jeffrey Sutton, a George W. Bush appointee, wrote for the en banc panel of Sixth Circuit judges in Thursday's opinion, disagreeing with the Republican's argument that Colorado II is no longer controlling.

"Since Colorado II, the plaintiffs maintain, the Supreme Court has 'made clear that preventing quid pro quo corruption or its appearance is the only interest' that allows Congress to impose campaign finance restrictions and 'that such restrictions must be narrowly tailored to that interest,'" he said.

"Any shifts in reasoning do not shift the precedential terrain from our vantage point," he added. "The Supreme Court has never overruled the decision. Even when the Supreme Court embraces a new line of reasoning in a given area and even when that reasoning allegedly undercuts the foundation of a decision, it remains the Supreme Court's job, not ours, to overrule it."

The Republicans had cited the growth of political action committees, or PACs, and their nearly unlimited spending power as proof the Federal Election Campaign Act of 1972 needs to be amended to remove limits on coordinated expenditures, which they said were infringing on First Amendment rights.

The plaintiffs had also noted exemptions to coordinated expenditure limits passed by Congress in 2014, including money spent on national conventions, party headquarters, or recounts and other legal proceedings, but the appeals court refused to budge.

"That Congress added three new exemptions ... does not suffice to invalidate the act's limits on coordinated party expenditures under the more deferential form of review that applies to contribution limits. These changes to the act simply do not suffice to alter the verdict of Colorado II," Sutton said.

The Republican committees emphasized over half of the states in the country allow a higher level of coordinated expenditures in state races and highlighted a complete lack of evidence of any corruption, but conservatives came up against a familiar impediment.

"Again, any changes in understanding about the impact of coordinated political party expenditures on the risk of corruption raises a question for the court, not us," Sutton said.

Several judges wrote concurring opinions, including U.S. Circuit Judges Amul Thapar, a Donald Trump appointee, Jane Stranch, a Barack Obama appointee, and Rachel Bloomekatz, a Joe Biden appointee.

U.S. Circuit Judge John Bush, a Trump appointee, wrote a "dubitante" opinion, a specific type of concurrence in which the author doubts a legal position taken by the majority but stops short of calling it wrong.

Bush cited the "dearth of historical examples" in support of the FEC's limits and urged the high court to reconsider its position.

"I respectfully submit that it is time to read some American history, which suggests that coordinated party expenditure limits violate the First Amendment," he said.

U.S. Circuit Judge Chad Readler, another Trump appointee, had no doubts about his position and expressed a clear desire to overturn the high court's ruling in Colorado II in a 26-page dissenting opinion.

"The FEC points to a lone, largely obsolete precedent," he said. "Contrary to the FEC's suggestion, we may not turn back the jurisprudential clock some two decades to save an undeniably infirm law. Accordingly, I would reach the merits of the plaintiffs' claims and find that the coordination restrictions violate the First Amendment."

U.S. Circuit Judges Julia Gibbons, Richard Griffin and Raymond Kethledge, all George W. Bush appointees, concurred with Sutton's lead opinion, along with Trump appointees Joan Larsen, John Nalbanian and Eric Murphy and Andre Mathis, a Biden appointee while Clinton appointees Karen Moore and Eric Clay joined in Stranch's concurrence.

U.S. District Judge Douglas Cole, a Trump appointee, had granted Republicans' motion to certify a question of law to the Sixth Circuit in January, and the full appeals court heard arguments in June.

The FEC declined to provide a statement on the ruling, while the Republican committees did not immediately respond to a request for comment.

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