IN RE CAO

s "own speech." For example, the following exchange occurred at oral argument:

See Second Amended Complaint, 43-44, 83-85.

See Cao (District Court), 688 F.Supp.2d at 539-42.

See Plaintiffs-Appellants Brief at 11-25. The Plaintiffs' state in their brief that "[in this certified question], Plaintiffs-Appellants challenged whether a party's `own speech' may be deemed a contribution." Id. at 11. "A political party's `own speech' is speech that is attributable to it, even if input on the speech as to details such as content, media, and timing was received from others, such as a party's media consultants, script writers, pollsters, officials, constituency, ideological allies, and candidates." Id. at 16 (footnote omitted). "Attribution belongs to the entity that pays for and adopts the speech." Id. "Cao Ad is clearly RNC's own speech because it would be attributable to RNC and bear a disclaimer showing that RNC paid for the ad." Id. at 17. This "own speech" argument is the sole argument Plaintiffs make to the en banc court on this issue.

Judge Jolly: . . . [Y]our own argument is that as long as it is your speech, there are no further concerns about it. Is that . . .

Plaintiffs' Counsel: That is correct.

Judge Jolly: But, on the other hand, you have admitted also that if you run it and it becomes, you run it so often and so much and with such degree of coordination that it becomes their speech.

Plaintiffs' Counsel: No, the degree of coordination does not affect whose speech it is at all.

Judge Jolly: In other words, you can sit down and discuss with them the degree of coordination on fifty ads, and you can keep running that ad and running that ad on their time, and it, and you are running a number of ads, and it still is your speech notwithstanding the "Nth" degree of coordination that you have in running them?

Plaintiffs' Counsel: That's right. There is no degree of being pregnant. You're either or not.

Thus the record unambiguously reflects that the RNC's sole challenge in this case with regard to the Cao ad is whether Congress may regulate a party's own speech, meaning speech that is paid for by the party and adopted by the party regardless of coordination with the candidate. We therefore examine only that argument.

To evaluate the merit of the Plaintiffs' expansive "own speech" argument, we return to Buckley v. Valeo, the first case to discuss coordinated expenditures under FECA. In Buckley, the Supreme Court examined, inter alia, then-18 U.S.C. § 608(e)(1) which limited individuals' ability to make independent expenditures. 424 U.S. at 39-51, 96 S.Ct. 612. The Government argued that Congress could restrict independent expenditures because independent expenditures could be used to circumvent contribution limits. The Buckley Court rejected the Government's argument. In finding that independent expenditures could not be regulated, the Court compared § 608(e)(1) with § 608(b), the provision that regulated expenditures coordinated with a candidate. The Buckley Court stated:

By its terms, § 608(e)(1) did not apply to national political parties. Since Buckley, § 608(e)(1) has been repealed and replaced with similar provisions in 2 U.S.C. § 441a.

. . . [C]ontrolled or coordinated expenditures are treated as contributions rather than expenditures under the Act. Section 608(b)'s contribution ceilings rather than § 608(e)(1)'s independent expenditure limitation prevent attempts to circumvent the Act through prearranged or coordinated expenditures amounting to disguised contributions. By contrast, § 608(e)(1) limits expenditures for express advocacy of candidates made totally independently of the candidate and his campaign. Unlike contributions, such independent expenditures may well provide little assistance to the candidate's campaign and indeed may prove counterproductive. The absence of pre-arrangement and coordination of an expenditure with the candidate or his agent not only undermines the value of the expenditure to the candidate, but also alleviates the danger that expenditures will be given as a quid pro quo for improper commitments from the candidate.

Id. at 46-47, 96 S.Ct. 612 (footnote omitted). Thus, the Buckley Court concluded that although Congress was unable to regulate individuals' independent expenditures, Congress could regulate individuals' coordinated expenditures.

Building on and embracing its analysis in Buckley, the Court in Colorado I and Colorado II further examined the limitations on coordinated and independent expenditures as applied to political parties. In Colorado I, the Colorado Republican Party ("CRP") brought an as-applied challenge to the Party Expenditure Provision arguing that restricting a party's independent expenditures was unconstitutional. The Colorado I Court followed the Buckley rationale and found that "the constitutionally significant fact . . . is the lack of coordination between the candidate and the source of the expenditure." Colorado I, 518 U.S. at 617, 116 S.Ct. 2309. In holding that the restraint on an independent expenditure was unconstitutional, the Court distinguished between coordinated expenditures and independent expenditures, stating:

. . . [T]he Court's cases have found a "fundamental constitutional difference between money spent to advertise one's views independently of the candidate's campaign and money contributed to the candidate to be spent on his campaign."

. . . [R]easonable contribution limits directly and materially advance the Government's interest in preventing exchanges of large financial contributions for political favors.

. . . [L]imitations on independent expenditures are less directly related to preventing corruption, since "the absence of prearrangement and coordination of an expenditure with the candidate . . . not only undermines the value of the expenditure to the candidate, but also alleviates the danger that expenditures will be given as a quid pro quo for improper commitments from the candidate."

Id. at 614-16, 116 S.Ct. 2309 (citations omitted). Thus, the Colorado I Court found that the Party Expenditure Provision was unconstitutional as applied to the CRP's independent expenditures.

In Colorado I, the CRP also raised a facial challenge to the application of the Party Expenditure Provision to coordinated expenditures. Id. at 623, 116 S.Ct. 2309. The Colorado I Court remanded this facial challenge because the lower courts had not considered the issue. Id. at 625, 116 S.Ct. 2309. The remanded issue of whether Congress could restrict coordinated expenditures reached the Supreme Court five years later as Colorado II. After analyzing its precedents in Buckley and Colorado I, the Colorado II Court found that "a party's coordinated expenditures, unlike expenditures truly independent, may be restricted to minimize circumvention of contribution limits." 533 U.S. at 465, 121 S.Ct. 2351. In examining whether coordinated expenditures could be restricted, the Court applied the intermediate scrutiny standard announced in Buckley: the restriction must be closely drawn to match a important government interest. Id. at 456, 121 S.Ct. 2351. The Court found that Congress could regulate coordinated expenditures as contributions because of the sufficiently important governmental interest in preventing the potential for political corruption by circumvention of campaign finance laws. Id. at 459-60, 121 S.Ct. 2351. The Court stated:

There is no significant functional difference between a party's coordinated expenditure and a direct party contribution to the candidate, and there is good reason to expect that a party's right of unlimited coordinated spending would attract increased contributions to parties to finance exactly that kind of spending. Coordinated expenditures of money donated to a party are tailor-made to undermine contribution limits. Therefore the choice here is not, as in Buckley and Colorado I, between a limit on pure contributions and pure expenditures. The choice is between limiting contributions and limiting expenditures whose special value as expenditures is also the source of their power to corrupt. Congress is entitled to its choice.

Id. at 464-65, 121 S.Ct. 2351 (footnotes omitted).

Though the Colorado II Court unambiguously found the application of the Party Expenditure Provision to coordinated expenditures to be facially constitutional, the Plaintiffs argue that " Colorado II expressly left open the as-applied question of whether parties' own speech may be limited as contributions." Plaintiffs-Appellants' Brief at 12 (footnote omitted). This argument is based on a footnote in the majority opinion of Colorado II that states:

Whether a different characterization, and hence a different type of scrutiny, could be appropriate in the context of an as-applied challenge focused on application of the limit to specific expenditures is a question that, as JUSTICE THOMAS notes, we need not reach in this facial challenge.

The Party appears to argue that even if the Party Expenditure Provision is justified with regard to coordinated expenditures that amount to no more than payment of the candidate's bills, the limitation is facially invalid because of its potential application to expenditures that involve more of the party's own speech. But the Party does not tell us what proportion of the spending falls in one category or the other, or otherwise lay the groundwork for its facial overbreadth claim.

533 U.S. at 456 n. 17, 121 S.Ct. 2351 (citations omitted). The Plaintiffs further rely on Justice Thomas' dissent, in which he states:

To the extent the Court has not defined the universe of coordinated expenditures and leaves open the possibility that there are such expenditures that would not be functionally identical to direct contributions, the constitutionality of the Party Expenditure Provision as applied to such expenditures remains unresolved. At oral argument, the Government appeared to suggest that the Party Expenditure Provision might not reach expenditures that are not functionally identical to contributions.

Id. at 469 n. 2, 121 S.Ct. 2351 (Thomas, J., dissenting).

Assuming that the Colorado II Court left open the possibility for an as-applied challenge to the Party Expenditure Provision's application to coordinated spending, the facts and arguments in the instant case do not present this court with that question. Acceptance of the Plaintiffs'" own speech" argument would effectively eviscerate the Supreme Court's holding in Colorado II, which dealt only with coordinated expenditures. The Court in Colorado II expressly recognized that Congress has the power to regulate coordinated expenditures in order to combat circumvention of the contribution limits and political corruption. Id. at 456, 121 S.Ct. 2351 (majority opinion) ("We accordingly apply to a party's coordinated spending limitation the same scrutiny we have applied to the other political actors, that is, scrutiny appropriate for a contribution limit, enquiring whether the restriction is `closely drawn' to match what we have recognized as the `sufficiently important' government interest in combating political corruption."). The Colorado II Court stated:

. . . [T]he question is whether experience under the present law confirms a serious threat of abuse from the unlimited coordinated party spending as the Government contends. It clearly does. Despite years of enforcement of the challenged limits, substantial evidence demonstrates how candidates, donors, and parties test the limits of the current law, and it shows beyond serious doubt how contribution limits would be eroded if inducement to circumvent them were enhanced by declaring parties' coordinated spending wide open.

Id. at 457, 121 S.Ct. 2351 (citation and footnote omitted).

If this court were to accept the Plaintiffs' exceedingly broad argument, we would be reaching a conclusion inconsistent with the Colorado II Court's teaching that coordinated expenditures may be restricted. The RNCs sole argument throughout has been that there is no limit to its claim that Congress cannot regulate a party's own speech regardless of the degree of coordination with the candidate. The district court succinctly identified the Plaintiffs' argument: "Plaintiffs claim that a party coordinated communication disclosed as paid for by the party is the party's `own speech' even if a candidate indicates in the communication that he has approved the message." Cao (District Court), 688 F.Supp.2d at 531. Moreover, "Plaintiffs claim that a party coordinated communication disclosed as having been paid for by the party is the party's `own speech' even if the candidate or her campaign actually creates the communication and passes it along to the party." Id. at 530. Thus, under the Plaintiffs' standard, all coordinated expenditures paid for and adopted by the party would be considered a party's own speech and not subject to restriction. As demonstrated above, the Colorado II Court, as well as the Court's earlier cases, clearly held that coordinated expenditures may be restricted to prevent circumvention and corruption.

The district court stated that "[t]he only type of party-coordinated communication that plaintiffs believe is not a party's `own speech' and therefore may be constitutionally limited is one that a campaign airs and for which the party merely pays the bill." Cao, 688 F.Supp.2d at 531. However, under Plaintiffs' argument even this type of communication would be considered the party's own speech if the party adopted the ad as its own.

We find the Colorado II Court's concern with corruption particularly important since, in the present case, the Plaintiffs admit that they themselves have already taken steps to circumvent the Act's individual donor contribution limits. The district court found that "[t]he RNC encourages its candidates to tell their `maxed out' donors to contribute to the RNC." Cao (District Court), 688 F.Supp.2d at 526. Representative Cao confirmed in his deposition this behavior by the RNC. "Congressman Cao has personally suggested to donors who had given the maximum amount to his campaign that they could also contribute to the party." Id. Furthermore, the district court found that "the party has shared [its] donor list" with its federal candidates, and that "[t]he sharing of information also happens in the other direction[, since the party] receives information from federal candidates about who has contributed to their campaigns." Id. at 523. The district court also found that "the RNC organizes `fulfillment' events to which individuals who have made a large contribution to the RNC of a specified amount are invited" so that they can have special access to federal lawmakers. Id. The Colorado II Court warned that "[i]f the effectiveness of party spending could be enhanced by limitless coordination, the ties of straitened candidates to prosperous ones and, vicariously, to large donors would be reinforced as well." Colorado II, 533 U.S. at 460 n. 23, 121 S.Ct. 2351. The above facts demonstrate the potential corruption and abuse that concerned Colorado II. Id. at 456, 121 S.Ct. 2351. At oral argument, the en banc court gave counsel every opportunity to address the concern that the Plaintiffs' argument conflicts with the Supreme Court's control ling precedent. In response, Plaintiffs' counsel reiterated that the challenge was an as-applied challenge, whereas Colorado II was a facial challenge. Colorado II, the Plaintiffs assert, left open the possibility of their as-applied challenge.

The district court found the following:

The RNC has created tiers of donors with specified benefits based on levels of annual giving: For example, donors who give $15,000 receive intimate luncheons, dinners, and meetings with key policymakers; donors who give $30,400 enjoy exclusive private functions with elected Republican leaders; and donors who commit to raising $60,800 receive at least one . . . exclusive event during the year, as well as other intimate events with key GOP policymakers. Cao (District Court), 688 F.Supp.2d at 523 (internal quotation marks omitted).

Chief Judge Jones questioned RNC's counsel in this regard:

[T]he Court has always very often said "well, coordinated expenditures are different." Now they haven't delineated the line between speech and coordination, but it seems to me you are trying to pretty much shatter that barrier. And the second thing is, Colorado I would have been decided in the way that you advocate if the Court had accepted your position. So what has changed since Colorado I?

Colorado II certainly left open the possibility for an as-applied challenge to the Party Expenditure Provision as it applies to coordinated expenditures; it is well-established that the facial upholding of a law does not prevent future as-applied challenges. E.g., Wisconsin Right to Life, Inc. v. FEC, 546 U.S. 410, 411-12, 126 S.Ct. 1016, 163 L.Ed.2d 990 (2006) (holding that the plaintiff could bring an as-applied challenge to BCRA despite the Court up-holding the statute on its face). However, simply characterizing the challenge as an as-applied challenge does make it one. "While rejection of a facial challenge to a statute does not preclude all as-applied attacks, surely it precludes one resting upon the same asserted principle of law." Penry v. Lynaugh, 492 U.S. 302, 354, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989) (Scalia, J., dissenting). See also RNC v. FEC, 698 F.Supp.2d 150, 157 (D.D.C. 2010) ("In general, a plaintiff cannot successfully bring an as-applied challenge to a statutory provision based on the same factual and legal arguments the Supreme Court expressly considered when rejecting a facial challenge to that provision. Doing so is not so much an as-applied challenge as it is an argument for overruling a precedent."), summ. aff'd RNC v. FEC, ___ U.S. ___,130 S.Ct. 3544, ___ L.Ed.2d ___ (2010).

The argument raised by the Plaintiffs in this case rests not on a sufficiently developed factual record, but rather, on the same general principles rejected by the Court in Colorado II, namely the broad position that coordinated expenditures may not be regulated. Finding for the Plaintiffs would require us to hold that Congress cannot limit a party's expenditures on a campaign ad, the content of which the party adopts, regardless of the degree of coordination with the candidate. Because such a conclusion would effectually overrule all restrictions on coordinated expenditures, the RNC's argument must fail in light of Colorado II.

The Plaintiffs' Second Amended Complaint raises further concern that this is merely an attempt to overturn Colorado II because the Plaintiffs chiefly rely on the rationale of the Colorado II dissenting opinion. See Second Amended Complaint, 43-44, 83-85.

Chief Judge Jones posits that we conclude the Cao Ad is a "coordinated" expenditure simply because the government claims it is. She writes: "This court is not bound by the government's simply labeling the speech `coordinated'. . . . `An agency's simply calling an independent expenditure a "coordinated expenditure" cannot (for constitutional purposes) make it one.'" Jones Dissent at 443 (quoting Colorado I, 518 U.S. at 621-22, 116 S.Ct. 2309). True enough. We note, however, that we are not relying on the government's claim that the Cao Ad is coordinated, but rather, we place our reliance on the Plaintiffs' admissions as to the extent of the coordination and Plaintiffs' labeling of their own claim. Notably, in their Rule 28(j) letter to the court, the Plaintiffs once again confirmed that the proposed Cao Ad amounted to coordination: "RNC provides a specific ad, a specific coordinating candidate, and specific detail as to coordination nature (timing, with content awareness)."

The Plaintiffs further argue that the Court's recent decision in Citizens United has signaled a change in the law in this area. Undoubtedly, Citizens United altered the legal landscape with respect to corporations and labor unions, because the Supreme Court held that these entities may make independent campaign expenditures free of Congressional limitations. See 130 S.Ct. at 913. However, as we discussed earlier, the Supreme Court's decision in Citizens United has no bearing on whether Congress has the power to restrict political parties' coordinated expenditures. Citizens United addresses only independent expenditures and simply does not address coordinated expenditures. Regardless, the holding of Citizens United — that the restrictions on independent expenditures by corporations and labor unions violated the First Amendment — is entirely consistent with the Court's decision in Colorado I, in which the Court held that Congress could not regulate the independent expenditures of a party. See Colorado I, 518 U.S. at 617, 116 S.Ct. 2309. Thus, as we have previously stated, there is no reason for us to conclude that Citizens United undermines Colorado LPs holding that Congress can regulate a party's coordinated expenditures.

See also RNC v. FEC, 698 F.Supp.2d at 153 (noting that Citizens United did not disturb prior decisions that found limits on contributions to political parties to be constitutional).

The Plaintiffs have offered much rhetoric regarding the Party Expenditure Provision's "suppression" of their speech, yet as the district court noted in its factual findings, "party committees like the RNC rarely reach their legal limit for coordinated expenditures in a particular House or Senate race." Cao (District Court), 688 F.Supp.2d at 520. Overall, "[i]n the 2008 election cycle, the major national party committees (RNC and DNC) supported their federal candidates with a total of $529,262 in contributions, $31,256,379 in coordinated expenditures, and $54,563,499 in independent expenditures." Id. at 517. Thus, the Party Expenditure Provision hardly amounts to a ban on free speech. Instead, the Act's cap on coordinated expenditures seems a small price to pay to preserve "the integrity of our system of representative democracy." Buckley, 424 U.S. at 26, 96 S.Ct. 612.

"Although there are at least 468 federal elections each cycle, Republican committees reached the maximum amount of coordinated expenditures in only seven congressional races in 2008, and in two races in 2006." Cao (District Court), 688 F.Supp.2d at 520.

The Plaintiffs' "own speech" argument cannot be reconciled with Colorado II. As such, we find that the expenditure and contribution limits and contribution provision in 2 U.S.C. §§ 441a(a)(2)(3), 441a(a)(2)(A), and 441a(a)(7)(B)(I) do not violate the First Amendment rights of one or more of the Plaintiffs as applied to coordinated communications that convey the basis for the party's expressed support.

IV.

The principal disagreement we have with the dissents is over the scope of Plaintiffs' argument with respect to the constitutionality of contribution restrictions relative to coordinated expenditures. Based on the record, briefs and oral argument, we have explained above why we conclude that the only issue Plaintiffs presented to us for decision is whether the RNC's "own speech" is subject to regulation and restriction under FECA. As we read Chief Judge Jones's dissent, she agrees that Colorado II answers this question and authorizes regulation of RNC's own speech generally. Chief Judge Jones's principal argument is that Plaintiffs also presented for decision whether the Act can constitutionally restrict expenditures for the Cao Ad involved in this case when that ad was coordinated between the RNC and the candidate as to "timing only."

Contrary to the position outlined above, Chief Judge Jones's dissent asserts first that the Plaintiffs raised this latter "narrow" issue in its brief. To support this assertion, Chief Judge Jones relies on two sources in Plaintiffs' briefs. First, she relies on recitations of Joint Stipulation of Fact 1132, which states that "RNC intends to coordinate the RNC Cao Ad with Joseph Cao as to the best timing for the Ad, but otherwise the Ad would not be coordinated with Cao." The recitation of a stipulation of fact does not present an issue on appeal. The only other passage in the Plaintiffs' briefs that the Chief Judge relies on to support her view that Plaintiffs wish to present this as an issue on appeal is in a footnote in the Plaintiffs' reply brief. The law is clear in this circuit that we do not consider arguments made for the first time in an appellant's reply brief. Woods v. Johnson, 75 F.3d 1017, 1035 n. 24 (5th Cir. 1996) ("[W]e do not consider issues raised for the first time in a reply brief."); Cavallini v. State Farm Mt. Auto Ins. Co., 44 F.3d 256, 260 n. 9 (5th Cir. 1995); see also Cinel v. Connick, 15 F.3d 1338, 1345 (5th Cir. 1994) ("A party who inadequately briefs an issue is considered to have abandoned the claim.") (citing Villanueva v. CNA Ins. Cos., 868 F.2d 684, 687 n. 5 (5th Cir. 1989)). Moreover, we read this footnote as an attempt by Plaintiffs to explain the legal question Colorado II left open, particularly Justice Thomas' view of the open question which he articulated in his dissent. This passage notes that Colorado II left open "whether some other speech communications may not be regulated because coordination is de minimis (e.g., just timing) . . . "See Jones Dissent at 438 (citing footnote 5 in Plaintiffs-Appellants' Reply Brief). Plaintiffs, however, make no argument that coordination of the Cao Ad (with timing plus knowledge of content) is de minimis. Notably, this is the only passage referring to " de minimis" coordination in either of Plaintiffs' briefs. That Plaintiffs never intended to make the de minimis argument is further supported by the fact (as we will discuss below) that counsel repeatedly disclaimed an intent to raise this narrow issue on appeal.

Even if we accept that the argument in Plaintiffs' reply brief properly raised this issue for our consideration, it is clear to us that counsel for Plaintiffs at oral argument abandoned this issue. We have quoted at length above counsel's persistent disclaimers that he is relying on the fact that the coordination between the candidate and the party was de minimis. He consistently argues that once the speech is determined to be the party's "own speech," then regulation or restrictions on that speech is unconstitutional. All of the responses given by counsel to questions from the court disclaiming that he is making this narrow argument cannot be explained as agreeing that the Cao Ad may amount to coordination under the regulation but failing to concede that the Cao Ad amounts to coordination for purposes of our constitutional analysis of Plaintiffs' claim. See Jones Dissent at 438 n. 5.

Even if we further consider that Plaintiffs made and did not abandon the argument that the coordination between the candidate and the party was de minimis, based on the stipulation and admission of counsel the coordination cannot be considered de minimis. At oral argument, Plaintiffs' counsel conceded that the RNC intended to coordinate the Cao Ad with Cao not only with regard to timing, but also by providing Cao with advance knowledge of the Cao Ad's content. Plaintiffs' counsel expressly repeated this concession in a supplemental Rule 28(j) letter filed with the court after oral argument stating that "RNC provides a specific ad, a specific coordinating candidate, and specific detail as to coordination nature (timing, with content awareness)." (emphasis added). These concessions by counsel are consistent with the allegations of the Plaintiffs' Second Amended Complaint, which recites the specific text of the Cao Ad, necessarily indicating that Plaintiffs intended to provide Cao with advance knowledge of the Cao Ad's content. See Second Amended Complaint ¶ 44.

Upon questioning by Judge Owen, counsel stated "I think that is part of the facts, that they knew what the Cao Ad said," and again confirmed that content knowledge is "part of the fact pattern."

FEC counsel's own supplemental Rule 28(j) letter to the court correctly observed that the admission by Plaintiffs' counsel at oral argument "clarified for the first time that Cao not only planned to coordinate as to timing, but also would be aware of the content of the advertisement."

The full text of the Cao Ad appearing in the Second Amended Complaint also appears in H 43 of Plaintiffs' First Amended Complaint filed December 4, 2008, two days before the election. Thus, Cao knew of the Cao Ad's content at least two days before the election, and if relief had been immediately granted the coordination would have taken place with his knowledge of the Cao Ad's content.

This "content awareness" stipulation has significance that the dissents completely overlook. For instance, given advance knowledge of the Cao Ad's content, if Cao approved of the content and found it favorable to his campaign, he may have told or requested the RNC to run the ad frequently during prime hours. If Cao disapproved of the Cao Ad's content and found it unfavorable to his campaign, he may have told or requested the party to run it infrequently during off hours, or perhaps not at all. This degree of coordination of campaign expenditures contrasts sharply with the Supreme Court's functional definition of independent expenditures. Whereas the Supreme Court has explained that an independent expenditure representing the party's own views may at times work against the candidate's interests, timing-plus-content-awareness coordination may ensure that a party's message virtually always works in the candidate's favor. See Buckley, 424 U.S. at 47, 96 S.Ct. 612; Colorado II, 533 U.S. at 464, 121 S.Ct. 2351.

Cao's experience with the RNC's previous independent expenditures confirms this distinction. He testified that some of the RNC's prior independent expenditures harmed his election chances. Deposition of Anh "Joseph" Cao ("Cao Dep.") at 42 (FEC Exh. 4 to Proposed Findings of Fact).

This is consistent with Cao's understanding of the nature of the intended coordination. At deposition, he testified as to the following:

I would like to know the contents of those ads. . . . And so if we were allowed to coordinate it with them, I would have loved to have their fundings and their support and — and to basically coordinate how the ads should be read or — what the ads should say. What our focus — what we want to focus on.

Cao Dep. at 42.

For these reasons we cannot agree with Chief Judge Jones's conclusion that "there is no functional difference between the Cao Ad and a constitutionally protected independent expenditure." Jones Dissent at 445. As we have explained above, knowledge of content plus timing coordination makes a huge difference relative to the benefit of the ad to the candidate that the dissent fails to recognize — namely, the candidate's ability to direct approved content for maximum impact and redirect disapproved content for minimum impact on his campaign.

Consideration of the "content awareness" element of Plaintiffs' allegations demonstrates the error in many of the dissents' conclusions, including Chief Judge Jones's assertions that "[t]here is no evidence that he or his campaign . . . provided their views on its content," that "[t]he candidate will not know whether the ad is effective," and that "[c]ontent, however, is not at issue in this case." Jones Dissent at 438, 445, 448.

This type of coordinated activity, moreover, implicates the same corruption and circumvention concerns of the Colorado II Court As discussed above, the court is particularly concerned with Plaintiffs' admissions that they have already taken steps to circumvent the Act's individual donor contribution limits. Furthermore, to quote Judge Clement's dissent, if Cao were asked "to provide input on its content" or "asked to provide his consent to run the ad . . . that would indeed raise a suspicion that the parties were attempting to circumvent the rules against coordination so that the RNC could pay the bill for Cao's speech — the evil at which the coordination rules are aimed." Clement Dissent at 452. This is exactly the scenario that is contemplated by the coordination of timing with the addition of advance content awareness, which both dissents refuse to acknowledge. Therefore, based on what we know of the extent of the proposed coordination on this scant record, it is reasonable to infer that the coordination of the Cao Ad between the candidate and the party as to timing with the candidate's prior knowledge of the of the ad's content would amount to a coordinated expenditure subject to restriction under Colorado II

In the absence of additional facts as to the actual extent of the coordination, all the Court is left with is the obligation to give reasonable inferences to the evidence that was produced. And it is the Plaintiffs' burden in an as-applied challenge of this nature to produce the facts upon which he bases his challenge. Khachaturian, 980 F.2d at 331. In other words, a plaintiff seeking an injunction in an as-applied challenge generally has the burden to allege enough facts for the Court to decide the constitutional claim while avoiding " `premature interpretation of statutes' "requiring speculation or conjecture on a "`factually barebones record.'" Milavetz, Gallop Milavetz, P.A. v. United States, ___ U.S. ___, 130 S.Ct. 1324, 1344, 176 L.Ed.2d 79 (2010) (Thomas, J., concurring in part and concurring in the judgment) (quoting Washington State Grunge v. Washington State Republican Party, 552 U.S. 442, 450, 128 S.Ct. 1184, 170 L.Ed.2d 151 (2008)). The Supreme Court "generally disapprove[d] of such challenges." Id. "When forced to determine the constitutionality of a statute based solely on such conjecture, we will uphold the law if there is any `conceivable' manner in which it can be enforced consistent with the First Amendment." Id. at 1345.

This is especially true in the context of a pre-enforcement as-applied action. Id.; see also Holder v. Humanitarian Law Project, — U.S., 130 S.Ct. 2705, 2722, 177 L.Ed.2d 355 (2010) (Denying a pre-enforcement as-applied First Amendment challenge to the material support provisions of federal anti-terrorism law because plaintiffs did not provide any "specific articulation of the degree to which they seek to coordinate their advocacy.").

In sum, we are satisfied that the de minimis coordination issue was not presented to the court for decision. Indeed, we find it strange that the dissents take an argument not made in the district court, nor presented to us on appeal — and wholly disavowed by Plaintiffs' counsel during oral argument — and attempt to raise it like a Phoenix from the ashes. However, as a court comprised of Article III judges, our role is not to create arguments for adjudication — but rather, our role is to adjudicate those arguments with which we are presented. Thus, we should decline the dissents' invitation to serve as advocates for the Plaintiffs and arbiters of our own engendered claims. Nonetheless, for the sake of completeness, even if the court were to conclude that this issue was presented, it is clear to us that an expenditure for an ad advocating the election of the candidate coordinated as to timing, when the candidate has knowledge of the content of the ad, amounts to a coordinated expenditure that may be constitutionally regulated under Colorado II.

We also disagree with the position advocated by Chief Judges Jones and Judge Clement that the WRTL analysis applies to this case. In WRTL, the Court considered whether the government could regulate an independent expenditure under § 203 of BCRA for payment of an "issue advocacy" ad. 551 U.S. at 455, 127 S.Ct. 2652. No question was raised that the ad was coordinated with the candidate. The Court applied strict scrutiny to the statute and held that BCRA as applied to this ad did not pass constitutional muster. This holding is not inconsistent with Buckley, Colorado I, and Colorado II, all of which make it clear that strict scrutiny applies to regulation of independent expenditures for political speech.

Under WRTL, it is clear that the Cao Ad is an express advocacy ad. The Cao Ad affirmatively asks the reader to join the party in supporting Cao on election day. This meets the requirements of an express advocacy ad. See WRTL, 551 U.S. at 469, 127 S.Ct. 2652. Additionally, the Plaintiffs' themselves characterize the Cao Ad as "a specific express advocacy communication that RNC intends to make . . . "Joint Stipulation of Facts 1 31.

V.

For the foregoing reasons, we answer the questions certified to the en banc court as follows. First, the Plaintiffs do have standing to bring their claims. Second, § 441a(a)(2)(A)'s $5,000 contribution limit is constitutional even though it imposes the same limits on parties as on PACs and is not adjusted for inflation. Third, §§ 441a(a)(2)(3), . 441a(a)(2)(A), and 441a(a)(7)(B)(i) are not unconstitutional as applied to the Plaintiffs. Moreover, we find that the district court did not abuse its discretion in dismissing the frivolous claims. Accordingly, we remand this case to the district court for entry of judgment consistent with this opinion.

lie along the spectrum running from "functional monetary contributions" to fullthroated political advocacy. The specifically defined activity here was the production and planned broadcast of the Cao Ad. Having raised this issue in the district court and to this court, the plaintiffs are entitled to an answer.

To waive an issue, a party must have "the intention of forgoing it." BLACK'S LAW DICTIONARY (8th ed. 2004); Kontrick v. Ryan, 540 U.S. 443, 458 n. 13, 124 S.Ct. 906, 157 L.Ed.2d 867 (2004) ("[W]aiver is the `intentional relinquishment or abandonment of a known right.'"(quoting United States v. Olano, 507 U.S. 725, 773, 113 S.Ct. 1770, 1777, 123 L.Ed.2d 508 (1993))).

The majority make too much of an exchange during oral argument in which plaintiffs' counsel stated that the Cao Ad was "coordinated." The majority imply that the plaintiffs conceded that the Cao Ad was a "coordinated expenditure" under Colorado II, and therefore Colorado II controls this case. This is inaccurate. When the plaintiffs stated that the Cao Ad was "coordinated," they were referring to the FEC regulations:

Judge Jolly: In other words you can sit down and discuss with them the degree of coordination on fifty ads and you can keep running that ad and running that ad on their time. And you're running a number of ads and still it's your speech notwithstanding the nth degree of coordination that you had.

Plaintiff's Counsel: That's right. There's no degree of being pregnant. You're either or not, and under their regulations, it is. . . .

(emphasis added). Counsel conceded only FEC's regulatory interpretation of the consequences of timing-only coordination, not the constitutionality of that interpretation.

Judge Berrigan's order cites both Colorado II's majority opinion and Justice Thomas's dissent, explaining that several "coordinated" activities are not equivalent to de facto contributions, but instead are genuine expenditures with only a minimal amount of coordination. Cao v. PEC, 688 F.Supp.2d 498, 539-40 (E.D.La. 2010). Relying on this discussion, the order rejects the FEC's motion for summary judgment, stating that "where a coordinated expenditure explicitly conveys that underlying basis, it arguably becomes less symbolic and begins to look more like a `direct restraint on . . . political communication.'" Id. at 541 (quoting Buckley, 424 U.S. at 21, 96 S.Ct. at 636.)

II. The Court Must Address Narrow Issues First

The majority hardly need reminding of the cardinal principle of constitutional adjudication that a court should address the case presented by the facts before it rather than broad, hypothetical scenarios. Courts should neither "anticipate a question of constitutional law in advance of the necessity of deciding it" nor "formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied." Ashwander v. TVA, 297 U.S. 288, 346-47, 56 S.Ct. 466, 483, 80 L.Ed. 688 (1936) (Brandeis, J.) (quoting Liverpool, N.Y. Philadelphia Steamship Co. v. Emigration Commissioners, 113 U.S. 33, 39, 5 S.Ct. 352, 355, 28 L.Ed. 899 (1885)); Wash. State Grange v. Wash. State Rep. Party, 552 U.S. 442, 450-51, 128 S.Ct. 1184, 1191 (2008). Going beyond our "case or controversy" limits spawns advisory opinions that are likely to be ill-informed.

The majority opinion falls into this trap. Rather than address the stipulated facts about the Cao Ad, which have been fairly "passed upon" in the parties' briefs and by the district court, the majority considers the application of Colorado II to all "speech" "adopted by a political party." The majority propose an answer to the broadest possible question before the court, extending the reach of their decision well beyond the factual record. Their overbroad approach leads to at least one serious mistake as they conflate the plaintiffs' "own speech" argument with every conceivable "expenditure" whose "coordination" is deemed by FECA to be the functional equivalent of a simple monetary contribution. Thus, they conclude, adopting the "own speech" argument would "effectually overrule" the Supreme Court's decision in Colorado II that facially upheld dollar limits on coordinated expenditures. This is plainly wrong.

The Supreme Court, the district court, the plaintiffs and the FEC all recognize that "coordinated expenditures" range on a spectrum from those that are more independently communicative of a supporter's views to those more like money contributions, which Buckley v. Valeo characterizes as mere symbolic expression. The majority employs a meat cleaver instead of a scalpel in the most sensitive constitutional area of political speech.

Colorado II, 533 U.S. at 445, 121 S.Ct. at 2360 ("Coordinated spending by a party, in other words, covers a spectrum of activity, as does coordinated spending by other political actors."); Id. at 467-68, 121 S.Ct. at 2372-73 (Thomas, J. dissenting) ("This definition covers a broad array of conduct, some of which is akin to an independent expenditure.").

Cao, 688 F.Supp.2d at 539-40.

Appellants' Reply Brief, at 10.

The FEC conceded that the Cao Ad would be at the outer reaches of the FEC's regulatory authority:

Judge [Clement]: Where do you think the Cao ad falls on the spectrum of coordinated expenditures, with respect to first amendment rights?

FEC Counsel: Well, I think in terms of — Judge [Clement]: Is it within the heartland or is it —

FEC Counsel: I think it's towards the outer boundary, because timing is —

Judge [Clement]: Which outer boundary? FEC Counsel: The outer boundary of what would be regulable. Because obviously, if it's just about timing there are other things that would make it even more valuable to a candidate such as being able to control more specifically the message itself.

The majority's overbreadth is even more disturbing because the Supreme Court proceeded with constitutional caution in the political contribution cases that concern us here. In Colorado I, the Court, rejecting the FEC's meat cleaver approach that would have deemed all political party expenditures as "coordinated" with candidates, upheld an as-applied challenge allowing independent expenditures. Colorado Republican Campaign Comm. v. FEC, 518 U.S. 604, 623-24, 116 S.Ct. 2309, 2319, 135 L.Ed.2d 795 (1996) (" Colorado I"). The Court then remanded for fuller consideration of the party's facial challenge to FECA's coordinated expenditure provision. Id. at 625-26, 116 S.Ct. at 2320-21. When the Court later took up and rejected the facial challenge in Colorado II, it nonetheless acknowledged a potential for future as-applied attacks:

Whether a different characterization, and hence a different type of scrutiny, could be appropriate in the context of an as-applied challenge focused on application of the limit to specific expenditures is a question that, as Justice Thomas notes, post, at 468, n. 2 [ 121 S.Ct. 2351], we need not reach in this facial challenge. Cf. Brief for Petitioner 9, n. 5 (noting that the FEC has solicited comments regarding possible criteria for identifying coordinated expenditures).

The Party appears to argue that even if the Party Expenditure Provision is justified with regard to coordinated expenditures that amount to no more than payment of the candidate's bills, the limitation is facially invalid because of its potential application to expenditures that involve more of the party's own speech. Brief for Respondent 48-49. But the Party does not tell us what proportion of the spending falls in one category or the other, or otherwise lay the groundwork for its facial over breadth claim. Cf. Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973) (overbreadth must be substantial to trigger facial invalidation).

Colorado II, 533 U.S. at 456, 121 S.Ct. at 2366 n. 17.

Thus, the Court majority expressly recognized, as did the dissent, the potential for as-applied challenges to coordinated expenditures that express the contributor's basis for supporting a candidate. See also Colorado II, 533 U.S. at 468, 121 S.Ct. at 2373 (Thomas, J. dissenting). The litigation history of the Colorado case demonstrates the Court's methodical migration from a narrow to a broader challenge of the FECA provision.

Justice Thomas explained:

The Court makes this very assumption. See ante, at 464, 121 S.Ct. 2351 ("There is no significant functional difference between a party's coordinated expenditure and a direct party contribution to the candidate"). To the extent the Court has not defined the universe of coordinated expenditures and leaves open the possibility that there are such expenditures that would not be functionally identical to direct contributions, the constitutionality of the Party Expenditure Provision as applied to such expenditures remains unresolved. See, e.g., ante, at 456, n. 17, 121 S.Ct. 2351. At oral argument, the Government appeared to suggest that the Party Expenditure Provision might not reach expenditures that are not functionally identical to contributions. See Tr. of Oral Arg. 15 (stating that the purpose of the Party Expenditure Provision is simply to prevent someone "from making contributions in the form of paying the candidate's bills").

The Court took a similar approach in Citizens United. It first analyzed the plaintiffs' arguments that Hillary: The Movie did not fall within statutory prohibitions on corporate electioneering communications and, only after rejecting those, reached the ultimate constitutionality of the ban. Chief Justice Roberts explained:

It is only because the majority rejects Citizens United's statutory claim that it proceeds to consider the group's various constitutional arguments, beginning with its narrowest claim (that Hillary is not the functional equivalent of express advocacy) and proceeding to is broadest claim (that Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 110 S.Ct. 1391, 108 L.Ed.2d 652 (1990) should be overruled). This is the same order of operations followed by the controlling opinion in Federal Election Comm'n v. Wisconsin Right to Life, Inc., 551 U.S. 449, 127 S.Ct. 2652, 168 L.Ed.2d 329 (2007) WRTL). There the appellant was able to prevail on its narrowest constitutional argument because its broadcast ads did not qualify as the functional equivalent of express advocacy; there was thus no need to go on to address the broader claim that McConnell v. Federal Election Comm'n, 540 U.S. 93, 124 S.Ct. 619, 157 L.Ed.2d 491 (2003), should be overruled. WRTL, 551 U.S., at 482, 127 S.Ct. 2652, 168 L.Ed.2d 329; id., at 482-483, 551 U.S. 449, 127 S.Ct. 2652, 168 L.Ed.2d 329 (ALITO, J., concurring). This case is different — not, as the dissent suggests, because the approach taken in WRTL has been deemed a "failure," post, at 935 [ 130 S.Ct. 876], but because, in the absence of any valid narrower ground of decision, there is no way to avoid Citizen United's broader constitutional argument.

Citizens United, 130 S.Ct. at 918 (Roberts, C.J., concurring). The Chief Justice also noted that the WRTL decision rested on a narrower constitutional basis.

The majority's approach cannot be salvaged by their re-characterization of the plaintiffs' "own speech" argument as a "facial attack" no different from the one rejected by the Supreme Court in Colorado II. It is true that the line between facial and as-applied constitutional challenges is not well defined. Citizens United, 130 S.Ct. at 893. But it is also true that courts have the authority to re-frame these arguments to subserve judicial restraint and in recognition that the distinction "goes to the breadth of the remedy employed by the Court, not what must be pleaded in a complaint." Id. (Kennedy J.) (citing United States v. Nat Treas. Emp's Union, 513 U.S. 454, 477-78, 115 S.Ct. 1003, 1018-19, 130 L.Ed.2d 964 (1995)). It follows from these principles that the parties "cannot enter into a stipulation that prevents the Court from considering certain remedies if those remedies are necessary to resolve a claim that has been presented." Citizens United, Id. at 893. Thus, it is improper for the majority to conclude that plaintiffs have somehow pled or argued themselves out of court. Recharacterizing the plaintiffs' position as a facial attack cannot eliminate the narrower issue concerning the Cao Ad.

Citizens United, 130 S.Ct. at 918 ("If there were a valid basis for deciding this statutory claim in Citizens United's favor (and thereby avoiding constitutional adjudication), it would be proper to do so.").

The courts of appeals have followed this approach, focusing on the factual allegations underlying the challenge. The Second Circuit explained in Ramos v. Town of Vernon, 353 F.3d 171 (2d Cir. 2003):

The present case has never been explicitly characterized as either facial or as-applied. Rather, plaintiffs' complaint without specificity alleges the ways the ordinance has infringed on their rights in their specific circumstances, and then asks for relief. While some of the claims plaintiffs raise are logically analyzed as facial challenges, e.g., the challenges for overbreadth and vagueness, the equal protection claim is more logically viewed "as-applied" given the statements in the complaint. Even if a facial challenge was intended, a facial challenge in the context of the present equal protection claim would logically include within it an as-applied challenge, and thus we cannot ignore the constitutional violation simply because the words "as-applied" were not used.

Id. at 174 n. 1 (citation omitted).

Similarly, in Jacobs v. Florida Bar, 50 F.3d 901 (11th Cir. 1995), the Eleventh Circuit explicitly recharacterized a challenge based on the facts before it where the appellants were unable to carry a broader facial attack on rules restricting attorney advertising:

We recognize that Appellants characterized their claim as a facial challenge. We are not, however, bound by Appellants' designation of their claims, as the complaint sets forth a cause of action for an as-applied challenge to the rules. See McKinney v. Pate, 20 F.3d 1550, 1560 (11th Cir. 1994) (en banc) ("Our responsibility, however, is to examine [plaintiff's] cause of action for what it actually is, not for what [plaintiff] would have it be," and thus court looks to complaint to determine what claim plaintiff's allegations support) . . .

Id. at 905 n. 17.

In Citizens United, the Court ignored the plaintiffs' stipulation fore swearing an attack on the corporate contribution ban. 130 S.Ct. at 892-93.

This court has the duty to decide the case on stipulated facts brought properly before us.

III. Evaluating Cao's As-Applied Challenge

In this as-applied attack on the coordinated expenditure limit that would ban broadcast of the Cao Ad, this court must first determine the appropriate level of scrutiny and then evaluate the evidence concerning the government's regulation. WRTL, 551 U.S. at 456, 127 S.Ct. at 2659 ("With the standard [of scrutiny] thus settled, the issue remains whether adequate evidentiary grounds exist to sustain the limit under that standard[.]"). Two levels of scrutiny govern campaign finance regulations: strict scrutiny and, unique to campaign finance jurisprudence, "closely drawn" scrutiny. Buckley v. Valeo, 424 U.S. 1, 25, 96 S.Ct. 612, 638, 46 L.Ed.2d 659 (1976). The former has been applied to candidates' speech and independent expenditures, while the latter applies to contributions and facially to "coordinated expenditures." Which standard pertains to the government's regulation of the Cao Ad depends on whether the ad is core political speech ( see Citizens United 130 S.Ct. at 890-91), or a functional contribution. This court is not bound by the government's simply labeling the speech "coordinated":

[W]e recognize that the FEC may have characterized the expenditures as "coordinated" in light of this Court's constitutional decisions prohibiting regulation of most independent expenditures. But, if so, the characterization cannot help the Government prove its case. An agency's simply calling an independent expenditure a "coordinated expenditure" cannot (for constitutional purposes) make it one. See, e.g., NAACP v. Button, 371 U.S. 415, 429, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963) (the government "cannot foreclose the exercise of constitutional rights by mere labels"); Edwards v. South Carolina, 372 U.S. 229, 235-238, 83 S.Ct. 680, 9 L.Ed.2d 697 (1963) (State may not avoid First Amendment's strictures by applying the label "breach of the peace" to peaceful demonstrations).

Colorado I, 518 U.S. at 621-22, 116 S.Ct. at 2319 (emphasis added).

Buckley held that contributions to a candidate may be regulated, because contributions, unlike communicative independent expenditures, express merely a general support for a candidate. Buckley, 424 U.S. at 21, 96 S.Ct. at 635. The FECA defines contributions as including "expenditures made by any person in cooperation, consultation, or concert. with, or at the request or suggestion of, a candidate." 2 U.S.C. § 441a(a)(7)(B)(i). While the Supreme Court has placed great importance on whether speech is coordinated, and thus regarded as a contribution, it has offered no guidance except to acknowledge that the sweeping term "coordinated expenditures" covers a wide range of activities with varying constitutional attributes:

The principal opinion in Colorado I noted that coordinated expenditures "share some of the constitutionally relevant features of independent expenditures." 518 U.S., at 624 [ 116 S.Ct. 2309]. But it also observed that "many [party coordinated expenditures] are . . . virtually in-distinguishable from simple contributions." Ibid. Coordinated spending by a party, in other words, covers a spectrum of activity, as does coordinated spending by other political actors.

Colorado II, 533 U.S. at 444-45, 121 S.Ct. at 2361.

There is no doubt that, standing alone, the Cao Ad is core political speech. The Cao Ad is more than "a general expression of support for the candidate." Buckley, 424 U.S. at 21, 96 S.Ct. at 635; see also Citizens United, 130 S.Ct. at 890 ("[T]here is no reasonable interpretation of Hillary [the movie] other than as an appeal to vote against Senator Clinton, . . . [T]he film qualifies as express advocacy."). The ad expressly advocates for Cao, "communicate[s] the underlying basis for [the RNC's] support," and increases "the quantity of communication." Buckley, 424 U.S. at 21, 96 S.Ct. at 635.

Further, the ad hews closely to the independent expenditure side of the spectrum. The RNC independently produced the Cao Ad without input from Cao; the RNC created the ad at its own initiative; the RNC planned the ad's message; the RNC produced the ad; the RNC approved the final version of the ad; and the RNC decided to air the ad. Like the ads in Colorado I, the Cao Ad "was developed by the [party] independently and not pursuant to any general or particular understanding with a candidate." Colorado I, 518 U.S. at 614, 116 S.Ct. at 2315. It unambiguously "reflects [the RNC's] members' views about the philosophical and governmental matters that bind them together [and] also seeks to convince others to join those members in a practical democratic task, the task of creating a government that voters can instruct and hold responsible for subsequent success or failure." Id. at 615-16, 116 S.Ct. at 2316.

Colorado I listed several features of an "independent expenditure" which pertain to this inquiry: (1) Whether the party independently decided to create the ad on its own initiative; (2) Whether the party independently developed the ad; (3) Whether the party's leadership independently approved the ad;(4) Whether the party independently decided to circulate the ad; (5) Whether the party claims ownership of the ad within the ad itself; (6) Whether, when viewed objectively, the ad is appears to be the party's own. Colorado I, 518 U.S. at 613-14, 116 S.Ct. at 2315.

At the opposite end of the coordination spectrum are instances in which a party simply pays its candidate's bills. See Buckley, 424 U.S. at 46, 96 S.Ct. at 648 n. 53; see also Colorado I, 518 U.S. at 624, 116 S.Ct. at 2320. Apparently rejecting the spectrum approach, the FEC asserts that the Cao Ad is functionally the same as a cash contribution to the candidate. This is inaccurate. The critical differences between the Cao Ad and a direct contribution or "footing the candidate's bills" include the ad's initiator, message, quality, ultimate source of approval, and decision to air. The Cao Ad is not "virtually identical" to one that Cao might produce. See Cao, 688 F.Supp.2d at 533 (explaining that Cao found many independent expenditures to be counterproductive and harmful). Further, despite the timing coordination, the ads "may well provide little assistance to the candidate's campaign and indeed may prove counterproductive." Buckley, 424 U.S. at 47, 96 S.Ct. at 648. Because the party decides to create and air the ad of its own initiative, the candidate cannot depend on it. The candidate will not know whether the ad is effective. If the ad is useful to the candidate, then it is useful only because the interests of the party and the candidate coincide. On all these grounds, there is no significant functional difference between the Cao Ad and a constitutionally protected independent expenditure.

Compared with the Colorado II pronouncement that the coordinated expenditure limits are facially valid, this case presents the narrow question whether de minimis coordination transforms otherwise constitutionally protected core political speech into something less. We believe it does not. Because the Cao Ad represents core political speech, it should be evaluated under the traditional strict scrutiny test. See Colorado II, 533 U.S. at 443-44, 121 S.Ct. at 2360; Colorado I, 518 U.S. at 614-15, 116 S.Ct. at 2315;. Alternatively, even if "closely drawn" scrutiny is required because of Colorado II, the Cao Ad cannot be subjected to dollar limits.

A. Applying Strict Scrutiny

That a statute has been held facially valid does not answer whether it may be constitutionally applied in a specific circumstance. WRTL, 551 U.S. at 464, 127 S.Ct. at 2663-64. Instead "[a] court applying strict scrutiny must ensure that a compelling interest supports each application of a statute restricting speech." WRTL, 551 U.S. at 464-65, 127 S.Ct. at 2664; id. at 477-78, 127 S.Ct. at 267; See also Citizens United, 130 S.Ct. at 898, 130 S.Ct. 876 (justifying regulation of speech "requires the Government to prove that the restriction furthers a compelling interest and is narrowly tailored to achieve that interest." (internal quotation marks omitted)); First Nat'l. Bank of Boston v. Bellotti, 435 U.S. 765, 786, 98 S.Ct. 1407, 1421, 55 L.Ed.2d 707 (1978). Moreover, the government bears the burden to demonstrate that the law is constitutional as applied to plaintiffs' speech. WRTL, 557 U.S. at 464, 127 S.Ct. at 2663.

The government contends that regulating timing-only coordination furthers its compelling interest in preventing corruption or its appearance or circumvention of the contribution limits. The FEC also argues that an expansive definition of "coordination" is necessary to ensure that it can regulate all coordinated expenditures that truly are de facto contributions. But because the Cao Ad represents expressive political speech, the government's position cannot be squared with WRTL:

This Court has long recognized "the governmental interest in preventing corruption and the appearance of corruption" in election campaigns. Buckley, 424 U.S., at 45, 96 S.Ct. 612, 46 L.Ed.2d 659. This interest has been invoked as a reason for upholding contribution limits. As Buckley explained, "[t]o 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." Id., at 26-27, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659. We have suggested that this interest might also justify limits on electioneering expenditures because it may be that, in some circumstances, "large independent expenditures pose the same dangers of actual or apparent quid pro quo arrangements as do large contributions." Id., at 45, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659.

McConnell arguably applied this interest — which this Court had only assumed could justify regulation of express advocacy — to ads that were the "functional equivalent" of express advocacy. See 540 U.S. at 204-206, 124 S.Ct. 619, 157 L.Ed.2d 491. But to justify regulation of WRTL's ads, this interest must be stretched yet another step to ads that are not the functional equivalent of express advocacy. Enough is enough. Issue ads like WRTL's are by no means equivalent to contributions, and the quid-pro-quo corruption interest cannot justify regulating them. To equate WRTL's ads with contributions is to ignore their value as political speech.

Appellants argue that an expansive definition of "functional equivalent" is needed to ensure that issue advocacy does not circumvent the rule against express advocacy, which in turn helps protect against circumvention of the rule against contributions. Cf. McConnell, supra, at 205, 124 S.Ct. 619 ("[R]ecent cases have recognized that certain restrictions on corporate electoral involvement permissibly hedge against circumvention of [valid] contributions limits" (internal quotation marks omitted; brackets in original)). But such a prophylaxis-upon-prophylaxis approach to regulating expression is not consistent with strict scrutiny.

WRTL, 551 U.S. at 478-79, 127 S.Ct. at 2672.

The import of WRTL is clear. Even if the record afforded some support for regulating timing-only coordination, which it does not, discussed infra, it clearly does not support treating the Cao Ad as the "functional equivalent" of a mere monetary contribution. The expressive content of the ad prevents that. In addition, the risk of circumvention of campaign contribution limits is not appreciably greater here than it is with "independent" expenditures. The candidate lacks control or influence over the initiation, production, and content of the party ad. The party decides whether or not an ad will be made, what it will say, what it will look like, and whether it will air. The candidate may or may not approve of the ad or find it useful.

Consequently, this expenditure will be useful to the candidate only to the extent that his and the party's interests coincide. Should the candidate "encourage" donors to give money to the party, he cannot be certain whether these party donations will be more useful to him than an independent expenditure. Without some link of candidate control or influence, neither the quid pro quo corruption nor appearance of corruption that justifies contribution limits can occur. Colorado II, 533 U.S. at 464, 121 S.Ct. at 2370 (discussing a "link in a chain of corruption by-conduit"); Citizens United, 130 S.Ct. 876, 908 (preventing corruption or its appearance is the government's only valid interest in limiting political speech).

The FEC essentially argues, as it did in WRTL, that expansive definitions of coordination and coordinated expenditures are needed to ensure that coordinating solely the broadcast timing of the party's ad does not circumvent the rule against coordinated expenditures which in turn helps to prevent circumvention of contribution limits which culminates in preventing quid pro quo corruption or the appearance of such corruption. This is no more than the "prophylaxis-upon-prophylaxis" speculation rejected by WRTL, 551 U.S. at 479, 127 S.Ct. at 2672. It is an overly broad approach that here sweeps up protected speech. And the government's logic, that the greater coordination includes the lesser (this coordination), is unambiguously rejected by WRTL: "This greater-includes-the-lesser approach is not how strict scrutiny works. . . . A court applying strict scrutiny must ensure that a compelling interest supports each application of a statute restricting speech." 551 U.S. at 477-78,127 S.Ct. at 2671,

In a case concerning the criminalization of virtual child pornography, a subject deserving far less First Amendment scrutiny, the Court rejected a similar contention, stating, "[T]hat protected speech may be banned as a means to ban unprotected speech. . . . turns the First Amendment upside down." Ashcroft v. Free Speech Coalition, 535 U.S. 234, 255, 122 S.Ct. 1389, 152 L.Ed.2d 403, (2002).

B. Applying "Closely Drawn" Scrutiny

Even if the regulation of the Cao Ad must be evaluated under Buckley's "closely drawn" standard because of its de minimis coordination, the government still must affirmatively demonstrate some sufficiently important interest — preventing corruption, the appearance of corruption, or circumvention. Buckley, 424 U.S. at 25, 96 S.Ct. at 638 (contribution limits may be upheld only if the " [s]tate demonstrates a sufficiently important interest and employs means closely drawn to avoid unnecessary abridgment of associational freedoms" (emphasis added)); Edenfield v. Fane, 507 U.S. 761, 770-71, 113 S.Ct. 1792, 1800, 123 L.Ed.2d 543 (1993) (when regulating speech under intermediate scrutiny, the government must "demonstrate that the harms it recites are real" and that standard is "not satisfied by mere speculation or conjecture.") The government remains obliged to present evidence that the interest applies to the facts before us. McConnell v. FEC, 540 U.S. 93, 144, 185 n. 72, 124 S.Ct. 619, 661, 684, 157 L.Ed.2d 491 (2003); Colorado II, 533 U.S. at 457, 121 S.Ct. at 2367. Not to require some level of proof by the government would allow censorship of the party's ad based on nothing more than the general proof offered to sustain the statute's facial validity in Colorado II.

The FEC offered no evidence or argument that coordination of the Cao Ad as to broadcast timing will appreciably increase the risk or appearance of corruption or circumvention of contribution limits. The record contains fifty-nine exhibits spanning thousands of pages, much of which was part of the record in Colorado II or McConnell. There are academic studies, expert testimony before Congress, invitations to various events put on by political parties, and many affidavits by politicians, former politicians, and political advisors. Overall, the record evidence proves that money plays a primary role in political campaigns, that parties and party leaders are significantly involved in political fund-raising, and that independent groups have played an increasing role in recent years. More money than ever is being raised, and election advertising has become more important and more of a science than ever before. Frequently, this money, whether it travels through campaigns, parties, or independent groups, opens up opportunities for access to candidates and politicians. In short, despite FECA, as amended by McCain-Feingold, money and politics remain inextricably linked, and may be more entangled than they were at the time of FECA's passage.

The majority is "shocked" to note that the major political parties spent well over $100 million apiece on independent expenditures during the 2008 election. To the contrary, this is not an exorbitant sum. To put this amount in perspective, consider that a mere 24 individuals contributed a total of $142 million to tax-exempt 527 organizations in 2004 and that 527 and 501(c) groups spent more than $400 million in the 2008 federal elections. S. Weissman and R. Hassan, BCRA and the 527 Groups, in THE ELECTION AFTER REFORM 79, 92-96 (M. Malbin ed. 2006); Press Release, Campaign Finance Inst., Soft Money Political Spending by 501(c) Nonprofits Tripled in 2008 Election (Feb. 25, 2009), available at http://www.cfinst.org/Press.aspx. Even this amount of money is a trifle in the world of marketing. A single corporation, Procter Gamble, annually spends $2.7 billion on advertising to promote its products in the United States. Suzanne Vranica San Schechner, P J Signs Ad Deal, WALL ST. J., April 22, 2010, at B6.

None of this, however, demonstrates that the specific type of coordination at issue in this case, concerning the timing of otherwise-independent expenditures, has any propensity to increase quid pro quo corruption or the appearance of corruption or to promote circumvention of contribution limits. Indeed, the voluminous evidentiary record contains only a few, incidental references to timing coordination. For example, a campaign finance expert opines that "Giving candidates a direct say in whether, when, and how often a party's speech is broadcast essentially gives them a direct say in the content of what the voters get to hear." Content, however, is not at issue in this case. A former politician states that party advertisements in the final days of a campaign can make the difference between winning and losing. Coordination is hardly necessary to draw that conclusion. One campaign consultant complained that "the clutter on television during the last few weeks of the campaign really prevented our message from getting through as clearly as we would have liked." No doubt. What is absent from the record is any discussion or evaluation (let alone evidence) on whether timing coordination increases the risk of corruption or its appearance. Instead, the record simply includes blanket conclusions that any coordination increases the risk.

In contrast, the general evidence demonstrating risks of circumvention presented in Colorado II involved situations where the candidate retained real control over the party's coordinated expenditures. Candidates controlled the message and its presentation and, ultimately, approved of those coordinated expenditures. See 533 U.S. at 457-60, 121 S.Ct. at 2367-68. Here, Cao had no influence over the RNC's speech save what time it would air. The candidate does not even have input into whether or on what stations the ad will air, only when it will air, and he cannot be certain that the party will heed his advice. If there is any heightened possibility of corruption or circumvention in this arrangement, the government has not pointed to it, and we ought not to invent some conceivable interest that the government itself is unable to articulate or prove.

Nor, in this instance, are entirely uncoordinated expenditures an adequate alternative to minimally coordinated speech. The record demonstrates that FEC's coordination-regulation regime prevents party leaders from exercising any degree of control over their party's advertisements in support of a candidate. Because party leaders inevitably associate with candidates, to avoid the taint of coordination parties must establish "independent expenditure programs" staffed by hired consultants who are responsible for all aspects of the party's communications, from polling and research to writing the scripts, but for the topline budget. In effect, a party has no control over its own message. The party leaders must make a Hobson's choice between talking to their own candidates and controlling their own party's message. The government justifies this regime by reference to the risk of "circumvention." But by prohibiting speech subject to de minimis coordination, the FEC severely abridges parties' constitutionally protected right to engage in independent expenditures — in other words, to speak in public in support of their own candidates. After Citizens United, a party is more constrained in its ability to engage in political speech than a run-of-the-mill business or corporation.

The district court found:

49. Because the RNC has a continuous and ongoing relationship with its candidates, special measures must be taken to do independent expenditures regarding its candidates. The RNC has extensive discussions with its candidates about their needs, activities and strategy. As a result, activities by the RNC about its candidates may be deemed to be coordinated with its candidates, subjecting these activities to the FECA's coordinated expenditure and contribution limits. In order to engage in any independent expenditure supporting one of its candidates, the RNC may hire an outside consulting group to do the independent expenditures but neither the RNC nor any of its officers, employees or agents may have any involvement in the independent expenditure in order for it to be truly independent. In fact, neither the chairman of the RNC nor any of the RNC's officers, employees or agents has control over the message of an independent expenditure yet the RNC bears responsibility for that message. The RNC makes its independent expenditures in this way out of a belief that there is no way to have a true "firewall policy." (Emphasis added).

"Closely drawn" scrutiny has to mean something when applied to censorship of core political speech. Where the government cannot demonstrate a compelling interest, and the effect of regulation in this case is to ban the Cao Ad, the regulation cannot be "closely drawn."

IV. The Majority Opinion

Even taking the majority on their own terms, Colorado II does not foreclose the plaintiffs' broader "own speech" argument. As we have noted, the majority's analysis of the plaintiffs' "own speech" argument simply misses the point: it is speech, not pencils, that the RNC has paid for. The spectrum of expenditures that may be coordinated with a candidate is potentially limitless. Coordinated expenditures that are functionally like monetary contributions, and are only symbolically expressive according to Buckley's, dichotomy, continue to fall comfortably within the range in which monetary limits must be upheld to prevent quid pro quo corruption or the appearance of such corruption. Consequently, the majority's fear that the bottom would fall out of FEC regulation of coordinated expenditures if RNC succeeds here is groundless.

Second, because the Cao Ad is undeniably core political speech, the majority is incorrect to dismiss the two most recent cases in which the Supreme Court has addressed whose communicative speech may be constitutionally limited and in what way. Neither Citizens United nor WRTL controls the present case, but both are informative; their bedrock defense of core political speech and their systematic approach to First Amendment standards of review cannot be waved away by reciting differences in degree, not kind, between the speakers and types of speech at issue. Finally, the majority's treatment of plaintiffs' "own speech" argument erases the distinction between facial and as-applied challenges. If the Cao Ad must be banned as a coordinated expenditure, despite its provenance and character as core political speech, the majority opinion "eviscerates" both the acknowledgment in Colorado I and II of the wide spectrum of potentially coordinated expenditures and the recognition in Colorado II that as-applied challenges were foreseeable. In short, the plaintiffs may have reached beyond the grasp of judicial power by promoting a largely hypothetical "own speech" position. The majority, however, seriously abdicated their responsibility to protect First Amendment political speech and to apply governing Supreme Court authorities.

V. Conclusion

The constitutional rules governing campaign finance law are presently in a state of flux, see Green Party of Conn. v. Garfield, 616 F.3d 189, 2010 WL 2737134 (2d Cir. July 13, 2010), but there is a clear trend favoring the protection of political speech. Beginning with WRTL, the Supreme Court has, in measured steps, protected political speech while leaving the scaffolding of Buckley in place. It has cast aside both recently enacted speech restrictions, see WRTL, and decades-old speech restrictions, see Citizens United. Lower courts have conformed to this trend. SpeechNow.org v. FEC, 599 F.3d 686 (D.C. Cir. 2010); N.M. Youth Organized v. Herrera, 611 F.3d 669 (10th Cir. 2010).

In each of those instances, the Supreme Court has demanded, to justify banning speech, that the government provide strong evidence of a compelling interest in preventing the appearance or occurrence of corruption. Where there is uncertainty about the government's interest, "the First Amendment requires us to err on the side of protecting political speech rather than suppressing it." WRTL, 551 U.S. at 457, 127 S.Ct. at 2659. Like Wisconsin Right to Life's issue ads or Citizen United's Hillary: The Movie, the Cao Ad is core political speech. The RNC wishes to coordinate with Cao on its broadcast timing, but the Supreme Court has never spoken on what degree of contact makes expressive political speech "coordinated" such that it may be suppressed. The Supreme Court's recent decisions demand much more from the government than it has presented here — essentially nothing. Even if the government were to meet its burden, it seems inconceivable that in this country founded on the hope and reality of free and open political debate, otherwise independent political speech could be banned because its speakers have asked a candidate, "When do we air the ad?"

It is not our place to revisit whether the government may generally regulate coordinated expenditures. Still less is it our place to approve the banning of a specific political ad simply because the Court has held that when coordinated expenditures are generally analogous to paying the candidates's bills, they may be regulated. But when it comes to defining what speech qualifies as coordinated expenditures subject to such regulation — the issue we do have to decide — we should follow Chief Justice Roberts's admonition in WRTL:

[W]e give the benefit of the doubt to speech, not censorship. The First Amendment's command that "Congress shall make no law . . . abridging the freedom of speech" demands at least that.

WRTL, 551 U.S. at 482, 127 S.Ct. at 2674.

We respectfully dissent.