Jeffrey Fisher, Professor of Law and Co-Director of the Supreme Court Litigation Clinic at Stanford Law School, has joined the legal team for Lieu v. Federal Election Commission, the case that could end super PACs. Professor Fisher will lead the forthcoming petition for certiorari to be filed with the U.S. Supreme Court this spring.

Background

This litigation was conceived in 2015, when Free Speech For People, a national non-profit public interest organization, began working with Professor Laurence Tribe (Harvard Law School) and Professor Albert Alschuler (University of Chicago Law School) on developing a challenge to the 2010 federal appeals court ruling in SpeechNow.org v. FEC. The SpeechNow decision—not, contrary to a common misconception, the Supreme Court’s decision in Citizens United v. Federal Election Commission—allowed the creation of super PACs. Unfortunately, then-Attorney General Eric Holder decided not to appeal SpeechNow to the Supreme Court, on the (clearly mistaken in retrospect) theory that the SpeechNow decision would “affect only a small subset of federally regulated contributions.” This prediction, like the D.C. Circuit’s speculation that contributions to super PACs could not lead to corruption or the appearance of corruption, has proven incorrect with time.

To this day, the Supreme Court has not reviewed the question. As a result, super PACs have become one of the primary vehicles for wealthy donors to evade campaign contribution limits designed to prevent corruption and the appearance of corruption. Meanwhile, Chief Justice Roberts has given signals that might suggest he would be willing to sustain limits on contributions to super PACs, within the framework of Citizens United.

In 2016, Free Speech For People, on behalf of a bipartisan coalition of Members of Congress led by Representative Ted Lieu (D-CA-33), Senator Jeff Merkley (D-OR), and the late Representative Walter Jones (R-NC-3), as well as 2016 congressional candidates from both major parties, filed this lawsuit with the goal of seeking reversal of SpeechNow. In the district court, the judge felt compelled to follow the court of appeals’ SpeechNow precedent. Unsurprisingly, the court of appeals adhered to its earlier decision. The case is now ready for Supreme Court review.

Professor Fisher Joins Legal Team

Jeffrey Fisher is a leading authority on U.S. Supreme Court practice whose work at Stanford Law School revolves around handling cases in the Court.  He has argued over three dozen cases there, on issues ranging from criminal procedure to maritime law to civil and human rights.

Professor Fisher’s successes include the landmark cases of Crawford v. Washington and Melendez-Diaz v. Massachusetts, in which he persuaded the Court to adopt a new approach to the Constitution’s Confrontation Clause; Riley v. California, in which the Court for the first time applied the Fourth Amendment’s protections against unreasonable searches to digital information on smart phones; Blakely v. Washington, in which the Court held that the Sixth Amendment right to a jury trial applies to sentencing guidelines; and Kennedy v. Louisiana, in which the Court held that the Eighth Amendment prohibits states from imposing capital punishment for crimes against individuals that do not result in death. Professor Fisher was also co-counsel for the plaintiffs in Obergefell v. Hodges, in which the Court held that the Fourteenth Amendment guarantees same-sex couples a right to marry.

Before joining the Stanford faculty, he clerked for U.S. Supreme Court Justice John Paul Stevens and Judge Stephen Reinhardt of the U.S. Court of Appeals for the Ninth Circuit.

Professor Fisher joins the legal team consisting of Free Speech For People, Professor Tribe, Professor Alschuler, Professor Richard Painter (Univ. of Minnesota Law School, and former chief ethics counsel to President George W. Bush); and Foster Garvey, a national law firm with a well-regarded election law practice.

The petition for certiorari is expected to be filed in April 2020.