Noah Feldman, a Bloomberg View columnist,  and professor of constitutional law at Harvard University, offers an astute assessment of our litigation strategy in taking on SpeechNow.org v. FEC, and the challenges that come with it.  Feldman writes,

The bipartisan legal team filed a complaint with the Federal Election Commission last Thursday on behalf of several members of Congress and congressional candidates, challenging super-PAC expenditures. Under current law, the complaint can’t succeed. The expectation is that the FEC will deny the complaint, as will the U.S. Court of Appeals for the D.C. Circuit. The table would then be set for asking the Supreme Court to consider the case.

The specific legal target is the most important appellate case you’ve never heard of: SpeechNow.org v. Federal Election Commission, decided by the D.C. Circuit in 2010. The issue in the SpeechNow case was whether federal limits on individual contributions to tax-exempt political action committees were permissible in the wake of the Citizens United precedent.

In the best-case scenario for the litigants, a court with five Democratic appointees might say that Citizens United was wrong the day it was decided. But if the justices don’t want to go that far, seeking to overturn the SpeechNow case gives them a fig leaf to cover a naked doctrinal reversal.

The way to do so would be to argue that Citizens United shouldn’t be interpreted as holding that, as a matter of immutable constitutional law, independent expenditures can never give rise to the appearance of quid pro quo corruption. Sure, Kennedy’s Citizens United opinion seemed to say so. But constitutional interpretation can change the meaning of precedent.

The best argument for a new interpretation would be to say that the true meaning of Citizens United is only that under specific conditions and factual circumstances, independent expenditures such as those made by a nonprofit corporation like the one in that case don’t give rise to the appearance of corruption. However, under different circumstances — such as donations by private individuals or for-profit corporations — the otherwise independent expenditures might create the appearance of corruption.

Reading the Citizens United precedent that way would open the door to regulate super-PACs. It would also make Citizens United a more commonsensical decision.

To read the article in full on Bloomberg View, click here.