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  • FEC Record: Litigation

Cao v. FEC

February 1, 2009

On December 4, 2008, Louisiana Congressional candidate Anh "Joseph" Cao, the Republican National Committee (RNC) and the Republican Party of Louisiana (LA-GOP, formerly "RPL") (collectively the Plaintiffs) filed an amended complaint in the U.S. District Court for the Eastern District of Louisiana challenging the constitutionality of the Party Expenditure Provision limits at 2 U.S.C. §441a(d)(2)-(3) as applied to their planned coordinated party expenditures. The Plaintiffs allege that the Party Expenditure Provision of the Federal Election Campaign Act (the Act) and the $5,000 contribution limit at 2 U.S.C. §441a(a)(2)(A) are unconstitutional as applied to party coordinated expenditures that are not "unambiguously campaign related" (Buckley v Valeo, 424 U.S. 1, 81 (1976)) or "functionally identical to contributions" (FEC v. Colo. Fed. Campaign Comm., 533 U.S. 431, 468 n.2). In addition, the Plaintiffs argue that the application of multiple coordinated expenditure limits for the same office is unconstitutional because it is ineffectual in preventing corruption and that the base amounts are too low. The Plaintiffs also challenge the constitutionality of the $5,000 contribution limit on the grounds that the same limits apply to parties as to political action committees, and that the limit it is too low and not indexed for inflation. The original complaint was filed by the Plaintiffs on November 13, 2008.

Background

Under the Act, a national party committee and state party committees may make expenditures in connection with the general election campaigns of federal candidates that are coordinated with these candidates. 11 CFR 109.30. Coordinated party expenditures do not count against the contribution limits, but are subject to a separate set of limits. 11 CFR 109.32.

The Act provides a formula for calculating coordinated party expenditure limits. For House candidates, the coordinated party expenditure limit is $10,000 increased by the Cost of Living Adjustment (COLA) or, in states with only one representative, the same as the Senate limit. For Senate candidates, the coordinated party expenditure limit is the greater of the number of the state voting age population multiplied by two cents and increased by the COLA, or $20,000 increased by the COLA. For Presidential candidates, the coordinated party expenditure limit is the number of the national voting age population multiplied by two cents and increased by the COLA. 11 CFR 109.32.

Court case

The RNC and LA-GOP allege that they have spent or committed to spend their coordinated party expenditure limits for Mr. Cao. They state that they wish to continue to coordinate with federal candidates to engage in:

  • Issue advocacy (including ads that mention candidates);
  • Grassroots and direct lobbying on pending executive or legislative matters;
  • Grassroots lobbying or other public communications concerning state ballot initiatives;
  • Public communications involving support or opposition to state candidates, support or opposition to political parties or support or opposition to candidates generally of a political party; and
  • Voter registration, voter identification, get-out-the-vote and generic campaign activity that (as to each category) is "non-targeted."

RNC and LA-GOP also allege that they intended to engage in direct and grassroots lobbying responding to the legislative issues that will arise in Congress by lobbying incumbent U.S. Representative William Jefferson on those issues. The RNC and RPL allege that they wished to reference Representative Jefferson within 90 days of the general election on December 6, 2008, in which Representative Jefferson and Mr. Cao were both federal candidates. Moreover, the RNC and RPL allege that they would have liked to have the material involvement of, and substantial discussion with, Mr. Cao concerning the intended communications. The RNC and RPL claim that because they had already met their contribution and coordinated party expenditure limits, and they had already worked with and had substantial discussions with Mr. Cao concerning his plans and needs, they would have run the risk of an investigation by the FEC and being considered in violation of the Act.

In the amended complaint, the Plaintiffs challenge the constitutionality of the Party Expenditure Provision and the $5,000 party contribution limit. With regard to the coordinated party expenditure limits, they allege that the phrase "in connection with the general election campaign of a candidate," when used to limit party expenditures under 2 U.S.C. §441a(d)(2)-(3), is "unconstitutionally vague and overbroad, and beyond Congressional authority to regulate federal elections, unless it is limited to activity that is unambiguously campaign related." The Plaintiffs assert that the only party activities that are "unambiguously campaign related" are:

  • Express advocacy communications;
  • "Targeted" federal election activity (voter registration, voter identification, get-out-the-vote and generic campaign activity that is "targeted to elect the federal candidate involved");
  • Paying a candidate's bills; and
  • Distributing a candidate's campaign literature.

The Plaintiffs argue that the Party Expenditure Provision "is vague, overbroad, and beyond the authority of Congress to regulate elections, all in violation of the First and Fifth amendments."

In addition, the Plaintiffs argue that it is unconstitutional to treat an express advocacy communication as a coordinated party expenditure if it constitutes the party's "own speech," as opposed to paying the candidate's bills. Plaintiffs argue that restrictions on the party’s own speech are expenditure restrictions, rather than contribution restrictions, and expenditure restrictions have been found unconstitutional. Plaintiffs assert that, to the extent that the Provision is applied to restrict a party's "own speech," it is subject to strict scrutiny and is in violation of the First Amendment.

The Plaintiffs further challenge the expenditure limits of the Party Expenditure Provision as they apply to House and Senate candidates on two main points: the use of multiple limits for the same office and the level of the base amount. They argue that in allowing multiple expenditure limits, the government acknowledges that candidates are not subject to corruption at lesser amounts, thus rendering the lower limits unconstitutional because they are not supported by an anti-corruption interest. They also argue that the rates are too low "to allow parties to fulfill their historic and important role in our democratic republic," thus violating the First Amendment guarantees of free speech and association.

In addition, the Plaintiffs challenge the application to parties of the $5,000 contribution limit in 2 U.S.C. §441a(a)(2)(A) for multicandidate political committees generally. The Plaintiffs assert that, as applied to coordinated or "in-kind" contributions, the limit is "unconstitutionally vague and overbroad, and beyond Congressional authority to regulate federal elections" to the extent that it is not restricted to expenditures that are "unambiguously campaign related." The Plaintiffs additionally challenge the $5,000 contribution limit for both in-kind and direct contributions because the same limit applies to both parties and political action committees. The Plaintiffs argue that "PACs and political parties must be treated differently to allow political parties to fulfill their historic and important role in our democratic republic." Finally, the Plaintiffs allege that the $5,000 limit is unconstitutional on its face because it is too low and is not adjusted for inflation. They argue that when Congress enacted the limit, $5,000 was considered sufficient to eliminate corruption. However, they allege that due to annual inflation, the value of the dollar amount is now lower than Congress originally intended.

Relief

The Plaintiffs ask the court for a Declaratory Judgment as to all challenged provisions and a permanent injunction enjoining the FEC from enforcing the challenged provision as applied to the Plaintiffs, their intended activities and all other entities similarly situated. U.S. District Court for the Eastern District of Louisiana, CV 08-4887.

  • Author 
    • Paola Pascual-Ferrá