Petitions of the week

In lawsuit originally filed by J.D. Vance, GOP asks court to overrule limit on campaign spending

The Petitions of the Week column highlights some of the cert petitions recently filed in the Supreme Court. A list of all petitions we’re watching is available here.

Nearly 25 years ago, the Supreme Court upheld a federal restriction on the amount of money political parties can spend at the direction of candidates for office. This week, we highlight petitions asking the court to consider, among other things, whether the justices should overrule that decision and hold that limits on these so-called “coordinated party expenditures” violate the First Amendment.

Limits on coordinated party expenditures first appeared in the Federal Election Campaign Act of 1971. Congress passed the law to create a national framework for congressional and presidential elections. The law sets specific rules for campaign spending and gives the Federal Election Commission (FEC) broad power to regulate elections under those rules.

The law also restricts the amounts of money both that individual donors can give to political parties or candidates, known as contributions, and that those parties or candidates can then spend on electoral races on their own, without cooperating, known as independent expenditures.

A series of Supreme Court decisions have weighed in on the 1971 law’s campaign-spending rules. In its landmark 1976 ruling in Buckley v. Valeo, the court struck down the limits on independent expenditures but generally upheld the limits on contributions. The justices ruled that, unlike money donated to political parties or candidates — which may not be spent on electoral races — money spent by parties or candidates directly on elections is core political speech protected by the First Amendment.

A quarter-century later, in 2001, the court in FEC v. Colorado Republican Federal Campaign Committee upheld the 1971 law’s limits on coordinated party expenditures. By a 5-4 vote, the justices ruled that Congress had a good reason to enact the restrictions: to prevent individual donors from using committees of the major political parties to circumvent the federal limits on contributions. This view rests on the theory that money donated to political parties and then spent at the direction of specific candidates is virtually the same as money donated to and then spent by those candidates themselves.

Fast-forward two decades to today, and the Colorado ruling is under siege. In 2022, then-Sen. J.D. Vance and former Rep. Steve Chabot — both Republicans from Ohio — and the Republican Party’s national committees that coordinate spending on behalf of senatorial and congressional races went to federal court, arguing that the federal limits on coordinated party expenditures violate the First Amendment.

Under a federal law governing these types of challenges, a federal district court in Ohio oversaw the long process of compiling evidence in the case — known as discovery — and then sent the First Amendment issue straight to the full U.S. Court of Appeals for the 6th Circuit.

The 6th Circuit rejected the Republicans’ challenge. In an opinion by Chief Judge Jeffrey Sutton, the court of appeals concluded it was bound by the Supreme Court’s 2001 ruling in the Colorado case. However, its members might have come to a different conclusion, Sutton wrote, if they were “faced with a clear playing field” unbridled by that 2001 decision.

In National Republican Senatorial Committee v. FEC, the Republican senatorial and congressional committees — with now-Vice President Vance and former Rep. Chabot out of the case — ask the justices to do what the 6th Circuit could not, and overrule their 2001 decision upholding the federal limits on coordinated party expenditures.

The Republican Party makes two arguments in favor of overruling. First, the party contends that the court’s decisions since 2001 have narrowed the reasons Congress can restrict campaign spending to one: preventing “quid pro quo” corruption – the idea that individual donations will be made in return for specifc political favors. By contrast, the Republican Party suggests, Congress enacted the limits on coordinated party expenditures, and the justices’ 2001 decision upheld them, based on an entirely different justification: preventing the circumvention of contribution limits by individual donors with party connections.

Second, the Republican Party argues that campaign spending has changed drastically in the past 25 years. The limits on coordinated party expenditures, the party contends, led to the rise of Super PACs, which today allow donors and candidates to coordinate in spending money on elections. Under the Supreme Court’s landmark 2010 ruling in Citizens United v. FEC, political spending by Super PACs is virtually unlimited.

Even if the justices are unwilling to overrule the 2001 decision, however, the Republican Party insists this lawsuit is different because the federal law limiting coordinated party expenditures itself has changed. Congress amended the law in 2014, the party emphasizes, to allow parties and candidates to spend more money in coordination on several items, including presidential nominating conventions and legal fees.

In a routine move, Acting Solicitor General Sarah Harris has asked for more time to file the government’s brief in response to the Republican Party’s petition. Before the 6th Circuit, the Biden administration defended the federal limits on coordinated party expenditures. It remains to be seen whether Harris will do the same before the Supreme Court, or instead will join the Republican Party to defend the vice president’s former case by asking the justices to reevalute these restrictions under the First Amendment.

A list of this week’s featured petitions is below:

National Republican Senatorial Committee v. Federal Election Commission
24-621
Issue: Whether the limits on coordinated party expenditures in 52 U.S.C. § 30116 violate the First Amendment, either on their face or as applied to party spending in connection with “party coordinated communications” as defined in 11 C.F.R. § 109.37.

Wheeler v. United States
24-678
Issue: Whether Congress violated the Fifth Amendment’s due process clause when it deprived servicemembers facing criminal prosecutions of the right to be tried by a panel of fellow servicemembers.

Energetic Tank, Inc. v. United States
24-683
Issue: Whether Feres v. United States should be extended to bar claims under statutes other than the Federal Tort Claims Act.

Meadors v. Erie County Board of Elections
24-684
Issue: Whether the “capable of repetition, yet evading review” doctrine requires plaintiffs in election law cases to predict and articulate specific plans for their own future electoral participation, or instead it is sufficient to show that the challenged law will continue to affect voters and candidates in future elections.

McBrine v. United States
24-685
Issues: (1) Whether plaintiffs who bring actions against the United States under the Camp Lejeune Justice Act of 2022 have the right to trial by jury; and (2) whether parties who have been denied a statutory right to trial by jury may categorically obtain mandamus relief.

Young v. Swaney
24-686
Issue: Whether a certificate of appealability may be granted under 28 U.S.C. § 2253(c) when the issue that the petitioner wishes to present on appeal has been resolved against him by binding circuit precedent but in his favor by another federal court of appeals.

Exxon Mobil Corp. v. Corporación Cimex, S.A.
24-699
Issue: Whether the Helms-Burton Act abrogates foreign sovereign immunity in cases against Cuban instrumentalities, or whether parties proceeding under that act must also satisfy an exception under the Foreign Sovereign Immunities Act.

Antonyuk v. James
24-795
Issues: (1) Whether the proper historical time period for ascertaining the Second Amendment’s original meaning as applied to the states is 1791, rather than 1868; and (2) whether “the people” must convince government officials of their “good moral character” before exercising their Second Amendment right to bear arms.