## Facts

- In 2008, Anh “Joseph” Cao was a sitting member of the U.S. House of Representatives running for reelection in Louisiana.
- The Republican National Committee (RNC) wrote and produced a television advertisement supporting Cao’s reelection.
- The RNC wanted to coordinate with Cao and his campaign about when to air the ad so the endorsement would run at the most effective time.
- Federal election law limits how much a political party may spend in coordination with a candidate (party coordinated-expenditure limits).
- The RNC had already reached its statutory limit on coordinated expenditures on behalf of Cao for that election.
- Because additional coordination could cause the spending to be treated as a regulated coordinated expenditure exceeding the cap, the RNC decided not to run the ad.
- Cao and the RNC sued the Federal Election Commission (FEC) in federal district court seeking declaratory relief that multiple FECA provisions restricting coordinated party spending were unconstitutional as applied to the planned ad and the proposed coordination limited to timing.
- The district court dismissed four of the plaintiffs’ challenges as frivolous and certified four constitutional questions to the Fifth Circuit for en banc review; Cao and the RNC also appealed the frivolous-dismissal rulings.
- The Fifth Circuit consolidated the appeal with the en banc proceeding on the certified questions.

## Issues

1. Whether FECA’s limits on political party coordinated expenditures violate the First Amendment as applied to the RNC’s proposed ad supporting Cao when the only planned coordination was timing.
2. Whether a political party’s coordinated expenditures that it characterizes as the party’s “own speech” may be treated as contributions and limited under FECA when coordinated with a candidate.
3. Whether the district court correctly dismissed certain additional FECA constitutional challenges as frivolous (and related threshold matters such as standing raised in the case).

## Decision

- The en banc Fifth Circuit resolved the certified constitutional questions in favor of the FEC and upheld the challenged FECA coordinated-expenditure restrictions as applied to the RNC’s proposed ad.
- The court held that party expenditures coordinated with a candidate may be treated as contributions and limited, even if the party claims the communication is the party’s “own speech.”
- The court rejected the argument that coordination limited to selecting the best time to air an ad removes the spending from coordinated-expenditure and contribution-limit rules.
- The court affirmed the district court’s dismissal of the four challenges deemed frivolous.

## Legal Principles

- Under *Buckley v. Valeo*, spending that is coordinated with a candidate may be regulated as a contribution because coordination links the expenditure to the candidate in a way that raises corruption and circumvention concerns similar to direct contributions.
- Under *Colorado Republican Federal Campaign Committee v. FEC* (Colorado II), Congress may impose limits on political party coordinated expenditures to prevent circumvention of contribution limits through close party–candidate relationships.
- A party’s characterization of a coordinated communication as “own speech” does not, by itself, create a First Amendment exemption from coordination rules or contribution limits when the spending is coordinated with a candidate.
- When Supreme Court precedent has already sustained materially similar regulation, lower courts may reject as-applied challenges that effectively seek a new exception inconsistent with that precedent.
- Courts generally decide the case based on the arguments presented and are “not to create arguments for adjudication” or “raise [them] like a Phoenix from the ashes.”

## Conclusion

*In re Cao* held that FECA’s coordinated party-expenditure limits are constitutional as applied to the RNC’s planned television ad supporting Congressman Cao, even where the party sought only to coordinate timing with the campaign and claimed the ad was the party’s “own speech”; the Fifth Circuit en banc upheld the statutory scheme treating coordinated party spending as a contribution subject to caps and affirmed dismissal of several additional claims as frivolous.


In re Cao, 619 F.3d 410 (2010)