Potential for Major Changes in Campaign Spending: NRSC v. FEC Update

Key Takeaways

• The Supreme Court of the United States’ upcoming decision in National Republican Senatorial Committee v. Federal Election Commission (NRSC v. FEC) will shape the engagement strategies of candidates, parties, and donors during a highly contested election to determine control of Congress.
• The Court heard oral argument in the case, which involves a challenge to the limits on how much political parties may spend in coordination with their candidates, whether by sponsoring communications or otherwise paying bills on their behalf.
• At stake is whether the six major national party committees will be permitted to spend unlimited amounts on political advertising that is fully informed or even created by the candidates themselves.
• With unlimited spending ability, party committees may become more attractive to donors, rivaling or reducing the attractiveness of super PACs and nonprofits as the repositories of first choice for donors.
• The nature and extent of the case’s impact will depend on whether the Court issues a narrow or sweeping decision.

What Is NRSC v. FEC About?

Limits on party spending in coordination with presidential, U.S. Senate, and U.S. House candidates are a vestige of the campaign finance reforms Congress passed in 1974 after the Watergate campaign finance scandal. While placing tight limits on contributions across the board, and even on the amounts candidates could spend, Congress authorized national and state political parties to spend only fixed amounts in support of their candidates on top of making limited contributions.[1]

Over the ensuing 50 years, most of the key components of these reforms have collapsed, while the party coordinated expenditure limits have stayed in place:

• In 1976, the Supreme Court in Buckley v. Valeo[2] struck down the candidate spending limits and held that while Congress may limit the amounts of contributions, it may not limit the amounts of independent expenditures. An “independent expenditure” expressly advocates a candidate’s election or defeat but is not made in cooperation or consultation with a candidate or party, or at their request or suggestion.
• Before 1996, the FEC treated all party expenditures as coordinated and, thus, subject to contribution and coordinated expenditure limits. That year, the Supreme Court in Colorado Republican Federal Campaign Comm. v. FEC (Colorado I)[3] held that parties may make unlimited independent expenditures using contributions raised and received within federal limits.
• In 2010, the Court in Citizens United v. FEC[4] held that corporations may make independent expenditures. That same year, the U.S. Court of Appeals for the District of Columbia Circuit in SpeechNow.org v. FEC[5] held that political action committees (PACs) could raise unlimited funds from individuals, corporations, and unions solely to make independent expenditures. These decisions paved the way for what people commonly call “super PACs.”
• In 2014, the Court in McCutcheon v. FEC[6] struck down the aggregate limits on how much an individual may contribute to all candidates and committees combined in an election cycle, thus enabling large contributions to joint fundraising committees in which candidates and parties raise funds together under their combined limits.
• In a 2024 advisory opinion, the FEC held that canvassing literature and scripts are not themselves subject to the coordination rules, thus allowing nonparty, noncandidate groups to spend unlimited amounts on field programs while interacting with their supported campaigns.[7]

The rise in nonparty spending by committees and organizations spending outside the limits put party committees at a significant disadvantage. As a result, party committees have historically sought other avenues for spending that would not be subject to the contribution or coordinated expenditure limits:

• The 1990s saw an explosion of “issue advocacy,” in which the party committees paid for ads that did not expressly advocate the election or defeat of a candidate (e.g., “vote for,” “vote against,” “elect,” “defeat”). Instead, these ads talked about candidates in other ways (e.g., “Call Jones and tell him …”) so that they would not count against the limits. The parties paid for these ads predominantly with “soft money”—funds raised outside FEC limits for nonfederal election activities. To close what was seen as a loophole in the law, the Bipartisan Campaign Reform Act of 2002 banned the national parties from raising and spending “soft money” and sharply curtailed state party “soft money” spending.
• In 1996, taking advantage of the Court’s decision in Colorado I, both major parties established “independent expenditure programs” in order to spend unlimited amounts on express advocacy expenditures without coordinating with their candidates. After the Bipartisan Campaign Reform Act of 2002, when national party committees could only raise and spend funds within federal limits and restrictions, independent expenditures replaced issue ads as the dominant form of party engagement in targeted races.
• In the 2000s, the parties began to pay for “hybrid ads”—ads affording equal time and space to promoting the candidate and the party as a whole, thus subjecting only part of their costs to the limits.
• Recently, parties and candidates have begun to pay for ads from joint fundraising committees. While advocating for candidates’ elections, the ads also solicit funds, which arguably allows them to be treated as operating expenses not subject to the limits on what parties may contribute or spend in support of their candidates. This recent trend sprang from two legal developments: (1) the 2014 McCutcheon decision, which removed the cap on what an individual may give to all candidates and committees combined; and (2) amendments Congress passed in 2014 to the campaign finance laws, which tripled the limits on what national parties could raise for convention, headquarters, and legal expenses.

Over the five decades since Congress passed the party coordinated expenditure limits, the Republican Party has repeatedly challenged these limits on First Amendment grounds:

• Colorado I came to the Court after a state Republican party paid for ads attacking a Democratic congressional candidate. When the FEC sued, the state party challenged the coordinated expenditure limits, claiming that they violated the First Amendment as applied to the advertisements.[8] In a surprise decision, the Supreme Court left the limits in place, held that political parties had a First Amendment right to make independent expenditures, and sent the case back to the lower courts.
• Later, in Colorado II, the Court upheld the facial constitutionality of the party coordinated expenditure limits.[9] Treating coordinated party spending “as the functional equivalent of contributions,” the majority applied “closely drawn” scrutiny under Buckley and sustained the limits as a means to prevent circumvention of contribution limits and the resulting risk or appearance of quid pro quo corruption.[10]
• Republicans challenged the party coordinated expenditure limits again in 2008, but the U.S. Court of Appeals for the Fifth Circuit unanimously concluded that Colorado II closed the door to facial challenges to the coordinated party expenditure limits.[11] The Fifth Circuit rejected the arguments that intervening developments in campaign finance law undermined the Supreme Court’s reasoning in Colorado II.

NRSC v. FEC is the latest in this series of challenges to the party coordinated expenditure limits:

• In 2022, the National Republican Senatorial Committee (NRSC), the National Republican Congressional Committee (NRCC), then-Senate candidate J.D. Vance, and then-Representative Steve Chabot sued in federal district court in Ohio to challenge the limits, both facially and as applied to FEC-defined “party coordinated communications.”[12] The plaintiffs sought expedited review under 52 U.S.C. § 30110, which requires certification of constitutional questions to the en banc court of appeals. The court concluded plaintiffs had standing and presented a nonfrivolous constitutional claim in light of post‑2001 doctrinal shifts and the 2014 statutory amendments. The court then “immediately” certified the constitutional question to the en banc U.S. Court of Appeals for the Sixth Circuit.
• In 2024, the en banc Sixth Circuit upheld the limits while expressing doubt about their continued vitality.[13] A 10‑judge majority said that “the law and facts have changed since” Colorado II because of the Supreme Court’s later assertion of quid pro quo corruption as the only valid anti-corruption interest and the need for actual evidence that a restriction reduces quid pro quo corruption or its appearance. The court also observed that the enhanced party limits enacted in 2014 could render the statute underinclusive by exempting legal proceedings and other types of spending from the limits, and it said that the rise of super PACs had brought dramatic changes to the campaign finance system. Still, because Colorado II applied a deferential form of review to coordinated party limits and remained binding, the court upheld the party coordinated expenditure limits, both facially and as applied to party coordinated communications.
• The plaintiffs sought Supreme Court review. Their briefing argues that (1) today’s coordination limits differ materially from those sustained in 2001, (2) recent decisions require narrow tailoring to the sole permissible interest of preventing quid pro quo corruption, and (3) there is no evidence of quid pro quo corruption through coordinated party expenditures.[14] Respondents and intervenor‑respondents defended the limits as a calibrated, longstanding anticircumvention measure grounded in Buckley’s contribution framework and Colorado II’s equivalency of contributions and coordinated party expenditures. The defenders of the limits warned also that eliminating the limits could destabilize the modern contribution‑and‑coordination framework.[15]

What Might the Court Do?

• The Court could simply strike down the party coordinated expenditure limits, as it did with the individual aggregate limit in McCutcheon.
• The Court could strike down the coordinated expenditure limits broadly and allow nonparty, noncandidate groups to also make unlimited coordinated expenditures:
  • A central question in the case is whether the First Amendment protects unlimited coordinated spending by parties, but not by others. Some commentators, like New York University constitutional law professor Richard Pildes, contend that the strength of the associational interest between parties and their candidates justifies different treatment under the First Amendment. However, the role and nature of the political parties was addressed inconsistently at best in the briefs and not deeply explored at oral argument.
  • Another question is whether the party coordinated expenditure limits are “closely drawn” to avoid corruption. As defenders of the limits have pointed out, the Court has previously upheld widely variable limits, in which parties may raise larger amounts and candidates smaller amounts. However, because of McCutcheon and the enhanced party limits enacted in 2014, the range of permissible contributions is far wider than before. For example, a candidate may raise $3,500 per election for their principal campaign committee but may also raise several hundred thousand dollars for a joint fundraising committee authorized by and affiliated with that same candidate.
  • Current members of the Court have previously resolved narrow questions of campaign finance law on sweeping grounds. In EMILY’s List v. FEC, a 2009 D.C. Circuit case that challenged highly specific FEC regulations over how PACs could raise and spend funds in connection with both federal and nonfederal elections, then-Circuit Judge Brett Kavanaugh authored an opinion that did not just strike down the specific, challenged regulations, but opened the door for PACs to raise and spend unlimited funds to make express advocacy independent expenditures.[16] And in Citizens United, Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito were among the majority that asserted a broad First Amendment right for corporations generally to make independent expenditures in a case involving a nonprofit’s efforts to market a movie criticizing then-candidate Hillary Clinton through video-on-demand.[17] While the impact of Roberts Court campaign finance decisions in cases like McCutcheon, Davis v. FEC[18],and FEC v. Cruz[19] have been limited, cases like Citizens United and EMILY’s List offer reason for proponents of campaign finance regulation to be apprehensive, and opponents to be enthusiastic about the prospects of a decision that could radically change the landscape for political spending like Citizens United did.
• The Court could defer or dispose of the case on jurisdictional grounds. The amicus curiae appointed by the Court to defend the limits argued forcefully that the case should be dismissed for mootness and want of standing. However, the oral argument did not focus extensively on these jurisdictional arguments. An interesting subplot in the case has been the candidacy of Vice President J.D. Vance, who was running for Senate in Ohio when the suit was brought. His counsel told the Court that he remains a candidate for U.S. Senate under FEC rules and intimated that he was likely to run for president, thus giving him a continued stake in the case.[20]
• The Court could uphold the limits. While this seems unlikely based on oral argument and previous decisions, the Court confounded similar expectations of the limits’ demise in Colorado I and Colorado II.

How Would Striking Down Expenditure Limits Affect Federal Campaign Spending?

The practical effects of a narrow decision in favor of the NRSC could be modest:

• The parties may still have an incentive to pay for advertising from joint fundraising committees because the participants in those same committees can include the party convention, headquarters, and legal accounts, which may accept funds at three times the regular limits. The parties would be able to curtail their independent expenditure programs and engage in unlimited coordinated spending, but the current practice of joint fundraising advertising may offer a way to do that anyway, with a wider pool of funds raised from larger donors.
• Super PACs may continue to enjoy a competitive advantage in raising unlimited funds, including funds from corporations and labor unions, and may also work freely with candidates and parties on field programs not involving public communications.
• Nonprofit organizations that avoid the major purpose of making contributions or expenditures to influence federal elections will continue to enjoy the competitive advantage of raising undisclosed funds and may continue to make independent expenditures and contributions to super PACs that make independent expenditures.

There is great uncertainty regarding the legal landscape for the upcoming election regardless of the outcome in the NRSC case. For example, a lawsuit brought by the Democratic Congressional Campaign Committee in the U.S. District Court for the District of Columbia over the practice of joint fundraising advertising has been stayed pending the NRSC decision. The permissible extent of 501(c)(4) political activity under IRS rules is the subject of current litigation. However, the fundraising and spending practices of the parties and the other players in the campaign finance ecosystem may not be markedly different after a court decision than before.

How Could the Case Affect Donor Decisions?

Donors seeking to affect Congressional control or a particular House or Senate race will have continued incentives to give to candidates, party committees, or super PACs, whose activities are likely to be undiminished by the opinion. Joint fundraising committees authorized by targeted House or Senate candidates may be especially attractive because of the optionality they provide. If the Court strikes down the limits, then the funds could support both the candidate and, potentially, party coordinated expenditures supporting the candidate. In any case, these committees might continue to operate as efficient sponsors of advertising.

A decision striking down the limits may present a potential pitfall for donors. While a contributor, when giving to a super PAC, may earmark his or her contribution for independent expenditures in support of a particular candidate,[21] a donor giving to a political party committee may not do so, lest his or her contribution to the party count against limits to the candidate also.[22] Donors cannot safely assume that the rules and practices that apply when giving to a super PAC will apply when giving to a party committee.

How Would the FEC’s Lack of Quorum Affect Responses to the Court’s Opinion?

The FEC lost quorum on April 30, 2025. Despite needing four votes to take most actions within its authority, it now has only two commissioners. The lack of quorum prevents the FEC from clarifying the law through advisory opinions or enforcing the law by initiating or closing enforcement investigations. On February 11, 2026, the president nominated two Republican commissioners, whose confirmation would restore quorum. The NRSC case may provide an incentive for the Senate to confirm the nominees timely. A Court decision would certainly bring a demand for practical guidance, which the agency may not otherwise be able to provide

Endnotes

[1] See Federal Election Campaign Act Amendments of 1974, Pub. L. 93-443 § 101(a), 88 Stat. 1264 (1974), codified at 52 U.S.C. § 30116(d). The party coordinated expenditure limits were long codified at 2 U.S.C. § 441a(d) so have been called the “441a(d) limits.”

[2] 424 U.S. 1 (1976).

[3] 518 U.S. 604 (1996).

[4] 558 U.S. 310 (2010).

[5] 599 F.3d 686 (D.C. Cir. 2010).

[6] 572 U.S. 185 (2014).

[7] FEC Advisory Op. 2024-01 (Texas Majority PAC).

[8] Colorado I, 518 U.S. at 621.

[9] FEC v. Colorado Republican Federal Campaign Comm., 533 U.S. 431 (2001) (Colorado II).

[10] Colorado II, 533 U.S. at 465.

[11] In re Cao, 619 F.3d 410 (5th Cir. 2010). 

[12] NRSC v. FEC, 712 F. Supp. 3d 1017 (S.D. Ohio 2024).

[13] NRSC v. FEC, 117 F.4th 389 (6th Cir. 2024).

[14] Brief for Petitioner at 11, NRSC v. FEC, No. 24-621 (U.S. filed Aug. 21, 2025).

[15] Brief for Intervenor-Respondents at 10-14, NRSC v. FEC, No. 24-621 (U.S. filed Sept. 29, 2025). 

[16] EMILY’s List v. FEC, 581 F.3d 1 (D.C. Cir. 2009).

[17] Citizens United, 558 U.S. 310.

[18] 554 U.S. 724 (2008).

[19] 596 U.S. ___ (2022).

[20] Transcript of Oral Argument at 5, NRSC v. FEC (No. 24-621).

[21] See FEC Advisory Op. 2010-09 (Club for Growth).

[22] See 11 C.F.R. § 110.1(h).