Appeal Filed, Federal Appeals Court to Review a Case that Could End Super PACs

Today, we filed a notice of appeal in Lieu v. Federal Election Commission, the case that could end super PACs. This notice of appeal starts the process by which the U.S. Court of Appeals will soon have the opportunity to review its 2010 ruling which created super PACs.

Lieu v. Federal Election Commission, which was filed in federal district court in Washington, D.C. in November 2016 on behalf of a bipartisan coalition of Members of Congress and 2016 congressional candidates led by Representative Ted Lieu (D-CA-33), Senator Jeff Merkley (D-OR), and the late Representative Walter Jones (R-NC-3), seeks the reversal of the March 2010 federal appeals court ruling in SpeechNow.org v. FEC. In that decision, the U.S. Court of Appeals for the D.C. Circuit concluded that the federal law limiting contributions to political action committees to $5,000 per person per year did not apply to political committees that promised to make only “independent” expenditures, thus unleashing super PACs.

As explained by scholars and experts in political corruption and constitutional law, the SpeechNow ruling was legally erroneous at the time under Supreme Court precedent (including Citizens United). 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 court’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 suggest that he would be willing to sustain limits on contributions to super PACs even within the framework of Citizens United.

As we explained in our earlier post after the district court’s February 28 decision, the district court held that it was bound to follow SpeechNow until it is overturned. Indeed, as the district court noted, the Lieu plaintiffs made clear that the case is intended as a vehicle for appeal to higher courts: “Plaintiffs acknowledge that the D.C. Circuit’s interpretation of Citizens United in SpeechNow binds this Court unless SpeechNow has been overruled by either the D.C. Circuit sitting en banc, or the Supreme Court.”

This appeal to the U.S. Court of Appeals for the D.C. Circuit is the next stage in the process of seeking a higher court ruling to overrule SpeechNow.

Free Speech For People, a national non-profit public interest organization founded on the day of the U.S. Supreme Court’s ruling in Citizens United v. FEC, serves as co-lead counsel for the plaintiffs, along with Brad C. Deutsch and the law firm of Garvey Schubert Barer; Stephen A. Weisbrod and the law firm of Weisbrod Matteis & Copley; and veteran government accountability attorney Anne Weissmann.  Mr. Deutsch served as lead counsel to the 2016 presidential campaign of Senator Bernie Sanders, and previously served for eight years as Chief of Staff and Senior Legal Advisor to Commissioner Steven T. Walther at the Federal Election Commission.

The legal team also includes a bipartisan group of distinguished scholars and practitioners in the law of the First Amendment, corruption, and government ethics: Professor Laurence Tribe (Harvard Law School); Professor Albert Alschuler (Univ. of Chicago Law School, emeritus); and Professor Richard Painter (Univ. of Minnesota Law School, and former chief ethics counsel to President George W. Bush).

For more information about the case, visit our Lieu v. FEC case page.

For more information about our broader efforts to challenge super PACs and the SpeechNow decision, visit our challenging super PACs page.

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