Challenging Super PACs

Free Speech For People and Equal Citizens have filed two separate but related lawsuits to challenge the Massachusetts Attorney General’s Office decision to reject the ballot initiative petition that Free Speech For People and Equal Citizens submitted earlier this year.

The ballot initiative petition, if passed, would limit contributions to independent expenditure PACs, commonly called “super PACs,” to $5,000 per individual per calendar year. This petition is a continuation of FSFP’s previous work to limit super PAC contributions in Massachusetts, including advocating for bills introduced in the state legislature.

The Massachusetts Attorney General’s Office rejected the initiative, ruling in its declination letter that the initiative petition would violate the constitutional right to free speech. Now Free Speech For People and Equal Citizens are challenging this decision in court. The Free Speech For People lawsuit argues that unlimited contributions to super PACs create risk of quid pro quo corruption and the appearance of corruption; and that contrary to common misconception, the Supreme Court’s Citizens United decision does not prevent states from limiting contributions to super PACs.

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“Super PACs” are political committees that promise to make only “independent” expenditures.

As we explained in 2015, there are significant cracks in the legal foundation that created super PACs, and several converging developments in election law, constitutional law and even criminal law suggest the end may be in sight.

Contrary to a common misunderstanding, super PACs were not created by the Supreme Court’s Citizens United decision, but by a later decision of a lower federal court of appeals, SpeechNow.org v. FEC. In SpeechNow, 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. 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.