Anh Cao v. Federal Election Commission

W. EUGENE DAVIS and BENAVIDES, Circuit Judges:

The challenges raised in the present case require this court to decide whether certain provisions of the Federal Election Campaign Act (“FECA” or “the Act”) of 1971, 2 U.S.C. § 431 et seq.,1 violate the *414Plaintiffs’ right to free speech under the First Amendment. 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. Accordingly, we find that none of the challenged provisions unconstitutionally infringe upon the rights of the Plaintiffs to engage in political debate and discussion.

I.

Plaintiff Anh “Joseph” Cao is the United States Representative for the Second Congressional District of Louisiana, and Plaintiff Republican National Committee (“RNC”) is the national political party committee of the Republican Party.2 On November 13, 2008, just before the December 6, 2008 election, the Plaintiffs filed a suit for declaratory judgment,3 asserting eight constitutional challenges to various provisions of FECA. Generally, the Plaintiffs challenge the statutory provisions limiting the RNC’s contributions to, and expenditures made in coordination with, Cao’s 2008 congressional campaign.

The district court, abiding by its proper role in addressing a 2 U.S.C. § 437h challenge,4 identified the constitutional issues in the complaint, held evidentiary hearings concerning those issues, and made necessary findings of fact. See Khachaturian v. FEC, 980 F.2d 330, 332 (5th Cir.1992) (en banc). In doing so, the district court began by discussing the general contribution and expenditure limitations FECA places on political parties. Cao v. FEC, 688 F.Supp.2d 498, 508-17 (E.D.La.2010) (“Cao (District Court)”). Specifically examining how FECA affected the RNC’s contributions and expenditures related to the 2008 Cao campaign, the district court then found that the RNC spent all of the $42,100 it was allowed to spend on coordinated expenditures under the Party Expenditure Provision, 2 U.S.C. § 441a(d)(2)(3),5 and reached its $5,000 *415contribution limit under § 441a(a)(2)(A).6 Id. at 532. Additionally, the district court found that the RNC would have spent additional money on speech expressly advocating the election of Cao had it been permitted to spend beyond FECA limitations. Id. at 532-33.

Upon hearing the evidence and making the necessary findings of fact, the district court evaluated the Plaintiffs’ eight constitutional challenges and, pursuant to § 437h, certified four questions to this en banc court. Id. at 549. The district court dismissed the Plaintiffs’ remaining four challenges as frivolous. Id. Subsequently, the Plaintiffs appealed the district court’s dismissal of the non-certified, frivolous questions. For purposes of judicial economy and efficiency, we consolidated the Plaintiffs’ appeal of the dismissal of the non-certified questions with the court’s en banc consideration of the certified questions.

We review the constitutionality of questions certified pursuant to § 437h de novo. See Goland v. United States, 903 F.2d 1247, 1252 (9th Cir.1990). We review the district court’s dismissal of the Plaintiffs’ remaining claims as frivolous for abuse of discretion. Id.

II.

This appeal requires us to address the intersection of congressional campaign finance reform with the fundamental right to free speech under the First Amendment. Since the landmark decision of Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976), the Supreme Court on a number of occasions has evaluated the limitations that the First Amendment imposes on the Government’s ability to preserve the integrity of the democratic election process through its regulation of campaign expenditures and contributions made to federal candidates. As such, many of the Plaintiffs’ constitutional challenges raise questions the Supreme Court has previously addressed. Thus, we begin our analysis with a brief examination of the constitutional contours in which we find ourselves. In Buckley, the Supreme Court determined that FECA’s “contribution and expenditure limitations operate in an area of the most fundamental First Amendment activities.” Id. at 14, 96 S.Ct. 612. The Buckley Court declared that the “[djiscussion of public issues and debate on the qualifications of candidates are integral to the operation of the system of government established by our Constitution.” Id. As a result, the Buckley Court applied a strict level of scrutiny to the Government’s restrictions “on the amount of money a person or group can spend on political communication during a campaign [since such restrictions] necessarily reduce] the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached.” Id. at 19, 96 5.Ct. 612.

*416Although the Buckley Court recognized that FECA’s limitations implicate important First Amendment concerns, the Supreme Court’s application of strict scrutiny did not result in the invalidation of all of FECA’s regulations. See id. at 19-21, 96 S.Ct. 612. Instead, the Buckley Court determined that some governmental intrusions on an individual’s (or political party’s) First Amendment right to make financial contributions to a candidate’s campaign were warranted based on the Government’s compelling interest to prevent corruption in the election of federal officials. Id. at 20-21, 26-27, 96 S.Ct. 612. The Court reasoned that:

To the extent that large contributions are given to secure a political quid pro quo from current and potential office holders, the integrity of our system of representative democracy is undermined. Athough the scope of such pernicious practices can never be reliably ascertained, the deeply disturbing examples surfacing after the 1972 election demonstrate that the problem is not an illusory one.

Id. at 26-27, 96 S.Ct. 612.7 The Buckley Court recognized that FECA’s contribution limits were Congress’ response to the rising levels of corruption in the election of public officials. Id. at 26, 96 S.Ct. 612. Consequently, the Court found that the governmental interest in preserving the integrity of our democratic system was paramount. Id. at 27, 96 S.Ct. 612.

In addition to articulating the compelling governmental interest for FECA’s limitations on campaign contributions, the Buckley Court also articulated the constitutional distinction between FECA’s regulations of contributions and expenditures, concluding that courts must apply a greater degree of constitutional scrutiny to FECA’s regulations of expenditures. See id. at 23, 96 S.Ct. 612. The Court determined that FECA’s regulations on expenditures placed greater restrictions on First Amendment rights because they “represent[ed] substantial rather than merely theoretical restraints on the quantity and diversity of political speech,” and consequently, the Court applied a more exacting degree of constitutional scrutiny to expenditure limitations. Id. at 19, 47-48, 96 S.Ct. 612. The Court further distinguished the Government’s regulation of contributions from its regulation of expenditures, reasoning that “[b]y contrast with a limitation upon expenditures for political expression, a limitation upon the amount that any one person or group may contribute to a candidate or political committee entails only a marginal restriction upon the contributor’s ability to engage in free communication.” Id. at 20, 96 S.Ct. 612. Accordingly, the Buckley Court recognized that the level of constitutional scrutiny for contribution limitations was less than the level of constitution scrutiny applied to limitations on expenditures. See id. at 29, 35, 38, 96 S.Ct. 612.

In further articulating the constitutional distinction between contributions and expenditures, the Court carefully distinguished independent expenditures from those expenditures that are “prearranged or coordinated” with a particular candidate. Id. at 46-47, 96 S.Ct. 612. Following the terminology used in FECA, the Buckley Court considered that for purposes of First Amendment scrutiny, “prearranged or coordinated expenditures” are constitutionally equivalent to contributions. Id. at 46, 96 S.Ct. 612. According to the Court, it followed that coordinated expenditures are subject to the same limitations *417and scrutiny that apply to contributions. Id. at 47, 96 S.Ct. 612. Although the facts of the challenge and nature of the Court’s analysis in Buckley gave the Court no reason to specifically address the level of scrutiny for coordinated expenditures, the Buckley Court implicitly recognized that limitations on coordinated expenditures would be, like contribution limitations, subject to a lower level of constitutional scrutiny than limitations on independent expenditures.

The Buckley Court’s distinction between coordinated expenditures (or contributions) and independent expenditures was reaffirmed in California Medical Ass’n v. FEC, 453 U.S. 182, 195, 101 S.Ct. 2712, 69 L.Ed.2d 567 (1981), when the Court explained that “[t]he type of expenditures that this Court in Buckley considered constitutionally protected were those made independently by a candidate, individual, or group in order to engage directly in political speech.” Id. (citation omitted) (emphasis added). In cases thereafter, the Court continued to recognize the distinction between a speaker’s First Amendment right to make independent versus coordinated expenditures, and the degree to which lower courts must balance these rights with the Government’s compelling interest to prevent corruption in the democratic elections of our public officials. E.g., Colorado Republican Fed. Campaign Comm. v. FEC, 518 U.S. 604, 613, 116 S.Ct. 2309, 135 L.Ed.2d 795 (1996) (“Colorado /”); FEC v. Colorado Republican Fed. Campaign Comm., 533 U.S. 431, 121 S.Ct. 2351, 150 L.Ed.2d 461 (2001) (“Colorado IF).

With this legal landscape in mind, we begin our examination of the Plaintiffs’ constitutional challenges by first examining the questions the district court found to be frivolous.

A. Frivolous Questions

1.

The district court did not certify the Plaintiffs’ second and fifth questions in their complaint, which raise clearly related issues. Cao (District Court), 688 F.Supp.2d at 535-39. The Plaintiffs’ second question reads as follows:

Do the Party Expenditure Provision limits at 2 U.S.C. § 441a(d)(2)(3) violate the First and Fifth Amendment rights of one or more plaintiffs in that they are excessively vague, overbroad, and beyond the authority of Congress to regulate elections as applied to coordinated expenditures other than (a) communications containing express advocacy, (b) targeted federal election activity, (c) disbursements equivalent to paying a candidate’s bills, and (d) distributing a candidate’s campaign literature?

Id. at 504. The Plaintiffs’ fifth question reads as follows:

Do the $5,000 contribution limit at 2 U.S.C. § 441a(a)(2)(A) and the Coordinated Contribution Provision at 2 U.S.C. § 441a(a)(7)(B)(i) (treating coordinated expenditures as in-kind “contributions”) violate the First and Fifth Amendment rights of one or more of the plaintiffs in that they are excessively vague, over-broad, and beyond the authority of Congress to regulate elections as applied to coordinated expenditures other than (a) communications containing express advocacy, (b) targeted federal election activity, (c) disbursements equivalent to paying a candidate’s bills, and (d) distributing a candidate’s campaign literature?

Id.

The Plaintiffs assert that §§ 441a(d)(2)(3), 441a(a)(2)(A), and *418441a(a)(7)(B)(i)8 reach speech that is not “unambiguously campaign related,” and therefore, the provisions are overbroad and vague in violation of the Supreme Court’s decision in Buckley. See Buckley, 424 U.S. at 81, 96 S.Ct. 612. We do not agree.

FECA must be read in light of the FEC regulations that implement the statute. Expenditures for a “party coordinated communication,” as defined by 11 C.F.R. § 109.37, are restricted to those which qualify as coordinated expenditures that may be regulated under the Constitution as contributions. In other words, the FEC regulations make it clear that a “party coordinated communication” only encompasses speech that is campaign-related.9 Thus, § 109.37 limits the breadth of communications to which §§ 441a(d)(2)(3), 441a(a)(2)(A), and 441a(a)(7)(B)(i) apply. Therefore, the Plaintiffs’ argument that these statutory provisions reach speech that is not campaign-related is without merit. Buckley does not permit non-campaign-related speech to be regulated.

In Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976), the Supreme Court, invoking constitutional avoidance, construed FECA’s limitation on expenditures to apply only to funding of commu-nieations that “express[ly] ... advocate the election or defeat of a clearly identified candidate for federal office,” i.e., those that contain phrases such as “ ‘vote for,’ ‘elect,’ ‘support,’ ‘cast your ballot for,’ ‘Smith for Congress,’ ‘vote against,’ ‘defeat,’ [or] ‘reject.’ ” Id. at 43-44 & n. 52, 96 S.Ct. 612.

Shays v. FEC, 528 F.3d 914, 917 (D.C.Cir. 2008). The FEC regulations make abundantly clear that the only coordinated expenditures captured by the statutory reach of FECA are campaign-related expenditures which Buckley recognized that Congress could regulate as contributions.

Plaintiffs argued to the district court that the FEC’s promulgation of the above regulation constitutes an acknowledgment that some line exists between speech which may be regulated and speech which may not be regulated. See Cao (District Court), 688 F.Supp.2d at 536. This acknowledgment, Plaintiffs argued, “demonstrates a constitutionally deficient ambiguity in the current statutory language.” Id. We know of no authority, and Plaintiffs cite to no authority, that requires the content of FEC regulations be included in statute or that prohibits a statute’s reach to be narrowed by regulations. Accordingly, we find that the district court did *419not abuse its discretion in denying the certification of the Plaintiffs’ second and fifth questions.

2.

The district court also found the Plaintiffs’ fourth question frivolous and denied its certification. Cao (District Court), 688 F.Supp.2d at 542-43. The Plaintiffs’ fourth constitutional challenge reads as follows:

Do the limits on coordinated expenditures at 2 U.S.C. § 441a(d)(3) violate the First Amendment rights of one or more plaintiffs? (a) Do all but the highest limits violate such rights because any lower rates are unsupported by the necessary anti-corruption interest? (b) Is 2 U.S.C. § 441a(d)(3) facially unconstitutional because lower rates cannot be severed from higher rates and the voting-age-population formula is substantially overbroad and inherently unconstitutional? (c) Is the highest limit for expenditures coordinated with Representatives unconstitutionally low?

Id. at 504.

The Plaintiffs argue that the multiple limits contained in § 441a(d)(3) mean that the Congress acknowledges that the higher limits are sufficient to accommodate any interest in preventing corruption, and thus the lower limits are automatically unnecessary to advance that anti-corruption interest.10 This argument leads the Plaintiffs to conclude that any lower limits within a multiple-limit scheme are inherently unconstitutional.

The Supreme Court rejected this argument in Buckley when the Court declared that “Congress’ failure to engage in such fine tuning does not invalidate the legislation.” Buckley, 424 U.S. at 30, 96 S.Ct. 612. Although there may be variances within a statute’s limitations on contributions or expenditures, so long as the Government can establish “that some limit ... is necessary, a court has no scalpel to probe ....” or parse through the varying degrees of limitations. Id. (quotations and citations omitted). “In practice, the legislature is better equipped to make such empirical judgments, as legislators have [the] ‘particular expertise’” necessary to assess what limits will adequately prevent corruption in the democratic election of their peers. Randall v. Sorrell, 548 U.S. 230, 248, 126 S.Ct. 2479, 165 L.Ed.2d 482 (2006).

Plaintiffs also assert that § 441a(d)(3) is unconstitutional because the limitations imposed on contributions to different candidates vary depending on the voting age population in their respective districts. This challenge is similarly frivolous as it is foreclosed by Nixon v. Shrink Missouri Government PAG, 528 U.S. 377, 382, 120 S.Ct. 897, 145 L.Ed.2d 886 (2000), in which the Court upheld the constitutionality of a “statute impos[ing] contribution limits ranging from $250 to $1,000, depending on specified state office or size of constituency.”

Finally, in regards to the Plaintiffs’ challenge that the highest limit for expenditures coordinated with Representatives is unconstitutionally low, the Plaintiffs have failed to provide the court with any evidence upon which we could conclude that the limits impose too stringent of a burden on political speech. See Buckley, *420424 U.S. at 21, 96 S.Ct. 612 (explaining that whether a contribution limitation is unconstitutionally low in part depends on whether the limitation prevents the candidate from “amassing the resources necessary for effective [campaign] advocacy .... ”); see also Khachaturian, 980 F.2d at 331 (“To present a colorable constitutional question in [an] as applied challenge, [the Plaintiff] must demonstrate that the [Act’s] limit had a serious adverse effect on the initiation and scope of his candidacy.”). Thus, in arguing that the challenged limits are unconstitutionally low, the Plaintiffs have failed to provide evidence demonstrating that the limits preclude federal candidates from effectively amassing the resources necessary to wage an effective campaign.11

Consequently, we find that the district court did not abuse its discretion in finding the Plaintiffs’ fourth question frivolous.

3.

Although the district court certified question 8(a), it found 8(b) and 8(c) to be frivolous. Plaintiffs offer no argument or authority in their briefs to assert that the district court erred in dismissing question 8(b). “When an appellant fails to advance arguments in the body of its brief in support of an issue it has raised on appeal, we consider such issues abandoned.” Justiss Oil Co., Inc. v. Kerr-McGee Refining Corp., 75 F.3d 1057, 1067 (5th Cir.1996). Accordingly, we find the Plaintiffs have waived their appeal of question 8(b).

The Plaintiffs’ eighth question in 8(c) states:

Does the $5,000 contribution limit at 2 U.S.C. § 441a(a)(2)(A) facially violate the First Amendment rights of one or more plaintiffs [because] ... (c) [t]he limit is simply too low to allow political parties to fulfill their historic and important role in our democratic republic?

Cao (District Court), 688 F.Supp.2d at 504.

The Plaintiffs contend that § 441a(a)(2)(A)’s $5,000 contribution limitation is unconstitutionally low because it prohibits political parties from fulfilling their historic role in “our democratic republic.” While the Plaintiffs offer powerful rhetoric in support of this position, the record does not support the rhetoric. As the district court found, during the 200708 election cycle, the national parties raised more money than they raised in the election cycles before the effective date of the BCRA when the parties were also able to raise “soft” money, i.e. money that was not subject to the limitation or prohibitions of FECA. See Cao (District Court), 688 F.Supp.2d at 517.12 Because Plaintiffs evidence failed to support their argument, the district court did not abuse its discretion in concluding that subsection (c) of the Plaintiffs’ eighth question is frivolous.

B. Certified Questions

Having found the district court did not abuse its discretion in finding the above *421questions frivolous, we now turn to the questions certified to the en banc court.

1.

The district court certified the first constitutional question as follows:

Has each of the plaintiffs alleged sufficient injury to constitutional rights enumerated in the following questions to create a constitutional “case or controversy” within the'judicial power of Article III?

Cao (District Court), 688 F.Supp.2d at 504.

As the Supreme Court observed, “[a] party seeking to invoke § 437h must have standing to raise the constitutional claim.” California Med. Ass’n, 453 U.S. at 193 n. 14, 101 S.Ct. 2712. This requires us to decide “whether appellants have the ‘personal stake in the outcome of the controversy’ necessary to meet the requirements of Art. III.” Buckley, 424 U.S. at 11, 96 S.Ct. 612 (quoting Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962)). “Standing requires, at a minimum, three elements: injury in fact, a ‘fairly traceable’ causal link between that injury and the defendant’s conduct, and the likelihood that the injury will be ‘redressed by a favorable decision.’ ” Cadle Co. v. Neubauer, 562 F.3d 369, 371 (5th Cir.2009) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)).

In the present case, the Plaintiffs have met their Article III burden. First, the complaint alleges an injury that is concrete, not hypothetical. The complaint establishes that the RNC spent all of its $42,100 in expenditures on Cao’s election campaign allotted under the Party Expenditure Provision and reached its $5,000 contribution limit. Furthermore, the complaint alleges that during the course of Cao’s campaign, the RNC wanted to make additional expenditures, and but for the $42,100 Party Expenditure Provision making it illegal to do so, the RNC would have made these expenditures. This injury is not conjectural, but rather, is sufficiently concrete to satisfy the requirements of Article III.

Moreover, the Plaintiffs’ alleged injury is fairly traceable to the FEC’s conduct, as it is the FEC’s implementation of the Act and its regulations that render the Plaintiffs’ desired speech illegal. The Plaintiffs also satisfy Lujan’s third requirement, re-dressability, since a favorable ruling by this en banc court would permit the Plaintiffs to make further monetary contributions and carry out their desired coordinated speech acts — without any fear that the Government would regulate their coordinated expenditures pursuant to FECA.

Therefore, Plaintiffs have demonstrated sufficient Article III standing to bring their constitutional claims.

2.

The district court certified the third question as follows:

Does the $5,000 contribution limit at 2 U.S.C. § 441a(a)(2)(A) violate the First Amendment rights of one or more plaintiffs as applied to a political party’s in-kind and direct contributions because it imposes the same limits on parties as on political action committees?

Cao (District Court), 688 F.Supp.2d at 504.

In the third certified question, the Plaintiffs claim that § 441a(a)(2)(A)’s limitation violates the First Amendment because it imposes the same contribution limitations on parties as it does on political action committees (“PACs”). The Plaintiffs raise three arguments in support of this proposition: first, that the Supreme Court’s decisions in Buckley and Colorado I support the notion that political parties’ political *422speech deserves a higher degree of protection than the political speech of PACs; second, that the $5,000 contribution limitation violates Randall; and third, that the Supreme Court’s decision in Citizens United v. FEC, — U.S. -, 130 S.Ct. 876, 899, — L.Ed.2d-(2010), should alter the analysis of contribution limits FECA places on political parties and PACs. These arguments are without merit.

First, the Plaintiffs misconstrue the principal holdings in Buckley and Colorado I. Although the Court in both Buckley and Colorado I acknowledged the important historic role that political parties have played in the democratic election of this Nation’s public officials, the Court simultaneously acknowledged that it is this precise role that political parties fill that gives rise to the Government’s compelling interest in regulating their coordinated expenditures and contributions. Notably, the Colorado II Court effectively rejected the argument Plaintiffs now make, reasoning that:

The Party’s arguments for being treated differently from other political actors subject to limitation on political spending under the Act do not pan out .... In reality, parties ... function for the benefit of donors whose object is to place candidates under obligation, a fact that parties cannot escape. Indeed, parties’ capacity to concentrate power to elect is the very capacity that apparently opens them to exploitation as channels for circumventing contribution and coordinated spending limits binding on other political players.

Colorado II, 533 U.S. at 455, 121 S.Ct. 2351. Thus, to the extent that the Plaintiffs attempt to argue that Buckley and Colorado I support the proposition that the Government cannot place the same restrictive contribution limitations on political parties that it places on PACs, that argument is foreclosed by Colorado II— where the Supreme Court’s analysis fully supports the Government’s differential treatment of political parties — because of what Colorado II recognized as a political party’s unique susceptibility to corruption.

Second, the Plaintiffs misread Randall when they argue that the Court’s decision turned on the fact that PACs and political parties were treated equally. In Randall, the Court struck down the State of Vermont’s Act 64 requiring “that political parties abide by exactly the same low contribution limits that apply to other contributors,” 548 U.S. at 256, 126 S.Ct. 2479, because the contribution limitations were “suspiciously low” and would seriously impair political parties’ ability to effectively participate in the political process. Id. at 257, 261, 126 S.Ct. 2479. In the present case, FECA does not impose a “suspiciously low” limitation on a political party’s contribution, but rather, affords a more reasonable limitation of $5,000.13 Consequently, the Supreme Court’s invalidation of Act 64 in Randall is entirely inapposite to the present constitutional challenge, and therefore does not support Plaintiffs’ challenge to § 441a(a)(2)(A).

Third, we do not read Citizens United as changing how this court should evaluate contribution limits on political parties and