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REPUBLICAN FEDERAL CAMPAIGN COMM. Thomas, J., dissenting
tional or have been functioning in systematic violation of the law." Ibid. I am unpersuaded by the Court's attempts to downplay the extent of the burden on political parties' First Amendment rights. First, the Court does not examine the record or the findings of the District Court, but instead relies wholly on the "observ[ations]" of the "political scientists" who happen to have written an amicus brief in support of the petitioner. Ibid. I find more convincing, and more relevant, the record evidence that the parties have developed, which, as noted above, indicates that parties have suffered as a result of the Party Expenditure Provision.4 See supra, at 470-471. Second, we have never before upheld a limitation on speech simply because speakers have coped with the limitation for 30 years. See, e. g., Bartnicki v. Vopper, 532 U. S. 514, 517 (2001) (holding unconstitutional under the First Amendment restrictions on the disclosure of the contents of an illegally intercepted communication, even though federal law had prohibited such disclosure for 67 years). And finally, if the passage of time were relevant to the constitutional inquiry, I would wonder why the Court adopted
4 Moreover, were I to depart from the record, as does the Court, I could consider sources suggesting that parties in fact have lost power in recent years. See, e. g., M. Wattenberg, The Decline of American Political Parties, 1952-1996, p. 174 (1998) (indicating that percentage of voters who identify with a party has declined while percentage of split tickets has increased); Maisel, American Political Parties: Still Central to a Functioning Democracy?, in American Political Parties: Decline or Resurgence?, 103, 107-111 (J. Cohen, R. Fleisher, & P. Kantor eds. 2001) (describing weaknesses of modern political parties). I also could explore how political parties have coped with the restrictions on coordinated expenditures. As Justice Kennedy has explained, "[t]he Court has forced a substantial amount of political speech underground, as contributors and candidates devise ever more elaborate methods of avoiding contribution limits." Nixon v. Shrink Missouri Government PAC, 528 U. S. 377, 406 (2000) (dissenting opinion). Perhaps political parties have survived, not because the regulation at issue imposes less than a substantial burden on speech, but simply because the parties have found "underground" alternatives for communication.
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