The Stool With Three Broken Legs

How a 25-year-old dissent became the law of the land — and what it means that nobody on the winning side wanted to defend the old rule

By Michael Phillips | Riptide | Dead Reckoning

On Tuesday, the Supreme Court did something it rarely does: it let a party walk away from defending its own statute. The Federal Election Commission, under the Trump administration’s Solicitor General, told the justices that the coordinated-party-expenditure limits Congress wrote into the Federal Election Campaign Act were unconstitutional. The Court had to appoint an outside lawyer, Roman Martinez, just to make the case the government wouldn’t make for itself.

That’s the detail buried under the 6-3 vote count, and it’s the detail that matters most for understanding National Republican Senatorial Committee v. FEC.

The mechanism

The case turned on a narrow but consequential question: can political parties spend unlimited money on advertising and other campaign activity in coordination with their candidates, or does Congress get to cap that spending to stop donors from using parties as pass-throughs around the $7,000 individual contribution limit?

For 25 years, the answer was no — parties couldn’t coordinate without limit. That answer came from FEC v. Colorado Republican Federal Campaign Committee (2001), known as Colorado II, which upheld the caps 5-4 over a dissent from Justice Thomas, joined by Chief Justice Rehnquist, Justice Scalia, and Justice Kennedy.

On Tuesday, Justice Kavanaugh wrote the opinion that overruled it. He was joined by Chief Justice Roberts, Justice Thomas, Justice Alito, Justice Gorsuch, and Justice Barrett. Justice Kagan dissented, joined by Justices Sotomayor and Jackson.

The headline write-ups call this a predictable 6-3 split along ideological lines. That’s true as far as it goes. But the more interesting story is in what Kavanaugh’s majority opinion actually does with Thomas’s 2001 dissent: it treats it as having already won the argument, just 25 years early.

The vindication thesis

A minority position doesn’t change. The Court does

Kavanaugh’s opinion spends a full section walking through Thomas’s Colorado II dissent point by point — the claim that earmarking rules and disclosure requirements already do the anti-corruption work the coordinated-spending caps claim to do; the claim that parties and candidates “naturally” work together and that limiting coordination doesn’t prevent corruption so much as it weakens parties relative to outside spenders; the claim that the Court’s 2001 majority was applying a deferential standard of review it had no business applying to a First Amendment claim.

The opinion doesn’t just cite Thomas’s dissent as supporting authority. It calls Colorado II “a doctrinal dinosaur” and says Thomas’s reasoning has been “amply vindicated” by everything the Court has decided since — McCutcheon v. FEC in 2014, FEC v. Ted Cruz for Senate in 2022. Twenty-five years is a long time for a four-justice losing position to wait around for a sixth vote. But that’s the shape of the thing: a minority position doesn’t change: the Court does.

This is the same pattern Riptide has been tracking all week in the separation-of-powers context with Trump v. Slaughter — a dissent that lost decisively becomes, decades later, the controlling opinion, not because the underlying facts changed but because the bench did. The difference here is that the Court is candid about it. Kavanaugh doesn’t pretend this is incremental; he says outright that the “core disagreement” with Kagan’s dissent is narrow but says the result rests on rejecting Colorado II’s entire framework, not distinguishing it.

The Court treated a 25-year-old dissent as though it had already won the argument—just a quarter century early.

The “prophylaxis upon prophylaxis” line

The mechanical argument for striking the caps is that Congress already has three tools to stop donors from laundering oversized contributions through parties to candidates: the $7,000 base contribution limit, earmarking rules that treat directed donations as if given straight to the candidate, and disclosure requirements that put every contribution on the public record. A fourth layer — capping what parties can spend in coordination with candidates even absent any earmarking — is, in Kavanaugh’s phrase, “prophylaxis upon prophylaxis upon prophylaxis,” and the First Amendment doesn’t tolerate that much redundancy when each additional layer restricts speech.

Kagan’s dissent doesn’t dispute that earmarking and disclosure exist. She disputes that they do anything. Her dissent walks through, in granular and somewhat damning detail, exactly how a joint fundraising committee works: a donor writes one check to something like a “Victory Fund,” which is really the candidate’s committee plus the national party committee plus close to 50 state party committees bundled together. The state committees, which can each accept $10,000, almost immediately transfer that money up to the national committee — Kagan cites real examples from both the 2024 Harris and Trump joint committees doing exactly this, often the same day money arrives. None of it counts as “earmarking” under FEC rules because no one has to say the word “earmark.” The candidate doesn’t need to ask for it explicitly, and the party doesn’t need to violate any rule to funnel the money back to the campaign — once the coordinated-spending caps are gone, there’s no rule left to violate.

Her math: a single donor can now route roughly $551,300 to one candidate’s effective use, against a $7,000 base limit that nominally still applies. Whether that gap matters constitutionally is exactly the question the majority and dissent disagree about, and it’s worth noting that disagreement is about as concrete as constitutional disagreements get — it’s arithmetic, not abstraction.

The disagreement isn’t abstract. It’s arithmetic.

What it does to the map

The practical effect lands in an election year. The national party committees — RNC, DNC, NRSC, DSCC, NRCC, DCCC — can now spend without statutory limit on advertising, polling, and other campaign costs produced in direct consultation with their candidates, four months before the midterms. Kavanaugh frames this as restoring competitive balance between parties and the Super PAC ecosystem that’s grown up since Citizens United and SpeechNow — parties raised $2.7 billion in the last cycle against $15.7 billion for outside PACs, a gap the opinion cites directly.

Whether that reasoning holds up is a separate question from whether it was foreordained. Justice Thomas wrote in 2001 that coordination between a party and its candidates is “the essence of our Nation’s party system of government” and that the Court had no business treating it as inherently suspect. He lost that argument 5-4. On Tuesday, six justices agreed with him.

The corruption Colorado II was built to prevent hasn’t gone away as a theoretical risk — what’s changed is who’s counting the votes.

Sources: The primary source for this column is the Supreme Court’s slip opinion in National Republican Senatorial Committee v. Federal Election Commission, No. 24-621, decided June 30, 2026, including Justice Kavanaugh’s majority opinion and Justice Kagan’s dissent. Background precedent drawn from FEC v. Colorado Republican Federal Campaign Committee, 533 U.S. 431 (2001) (Colorado II); McCutcheon v. FEC, 572 U.S. 185 (2014); and FEC v. Ted Cruz for Senate, 596 U.S. 289 (2022). The FEC’s coordinated-party-expenditure limits at issue appear at 52 U.S.C. § 30116(d). Victory Fund joint-committee mechanics and the dollar figures cited in Kagan’s dissent are drawn from public FEC filings for the 2024 Harris Victory Fund and Trump 47 Committee joint fundraising structures. The SpeechNow.org v. FEC reference (D.C. Cir. 2010) is cited for the Super PAC parallel, as noted in prior Riptide campaign finance coverage.

Dead Reckoning is Riptide’s recurring analysis column tracking the through-lines in institutional and legal accountability stories. Methodology: pattern recognition across cases, explicit citation to primary sources, and a refusal to treat outcomes as inevitabilities until the receipts say otherwise.