I have been following this NRSC case for a long time, and long predicted a cert grant. After multiple delays, starting when Biden was still president, DOJ has filed its response in the Supreme Court to the Republican Party. In a highly unusual move, the government is not defending the constitutionality of its statute, instead agreeing that the party limits violate the First Amendment and urging a cert grant. DOJ writes:

Petitioners challenge a federal statute, 52 U.S.C. 30116(d), that limits the amount of money that a political party may spend in an election campaign in coordination with a candidate. The government agrees with petitioners that the challenged statute abridges the freedom of speech under this Court’s recent First Amendment and campaign-finance precedents.

This Court should grant the petition for a writ of certiorari to address developments since the Court upheld the statute in FEC v. Colorado Republican Federal Campaign Committee, 533 U.S. 431 (2001) (Colorado II ).
The core function of a political party is to promote its candidates to the electorate. A party performs that function most effectively in cooperation with the candidates themselves. By restricting that cooperation, the party-expenditure limit severely burdens the rights of parties and candidates alike. And the limit is not narrowly tailored to serve the only interest that this Court has held can justify a campaign-finance restriction: preventing the reality or appearance of quid pro quo corruption. See FEC v. Ted Cruz for Senate, 596 U.S. 289, 305 (2022); McCutcheon v. FEC, 572 U.S. 185, 192 (2014) (opinion of Roberts, C.J.).

The en banc Sixth Circuit acknowledged the serious constitutional concerns raised by the party-expenditure limit but determined that it was bound by this Court’s decision upholding the limit in Colorado II. As the Sixth Circuit acknowledged, however, this Court’s more recent precedents have superseded key portions of Colorado II’s analysis. For example, Colorado II rests on the premise that Congress may restrict political speech to combat not just quid pro quo corruption, but donor influence more generally—a rationale that this Court rejected in McCutcheon and Cruz. Moreover, Congress has amended the statute in a manner that undermines Colorado II’s rationale for upholding it, and thus that decision is no longer controlling even as to this very statute. Further, the modern dynamics of campaignrelated expenditures have changed greatly in the 24 years since Colorado II, rendering its factual presuppositions obsolete. Multiple judges of the Sixth Circuit encouraged this Court to reconsider the statute’s validity and the ongoing vitality of Colorado II in light of those developments. The Court should take up that invitation.

The Department of Justice has a longstanding policy of defending challenged federal statutes but has determined that this is the rare case that warrants an exception to that general approach. This case involves a campaign-finance restriction that violates core First Amendment rights—a type of restriction that has previously led the government to file a brief expressing skepticism of the constitutionality of a federal statute. See Att’y Gen. & United States Br., Buckley v. Valeo, 424 U.S. 1 (1976) (No. 75-436). This case also involves a precedent of this Court that has been severely undermined, if not superseded, by intervening legal, factual, and statutory developments—but that only this Court can reassess. And this Court’s more recent, controlling campaign-finance precedents raise a clear-cut case against the validity of this speech restriction, which
raises First Amendment concerns of the utmost importance. See Monitor Patriot Co. v. Roy, 401 U.S. 265, 272 (1971) (“[T]he constitutional guarantee” of the Free Speech Clause “has its fullest and most urgent application precisely to the conduct of campaigns for political office.”). This Court should grant the petition for a writ of certiorari, appoint an amicus curiae to defend the judgment below, and reverse the judgment.

The Court will almost certainly take this case and agree, overturning these rules. That may even make sense now in light of the prevalance of super PAC spending that has undermined political parties and done nothing to limit (and in fact increased) corruption and inequality.