Eight years ago today, the U.S. Court of Appeals for the D.C. Circuit decided SpeechNow.org v. FEC, the case that created 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, both Justices Kennedy and Chief Justice Roberts have given signals that might suggest one or both would be willing to sustain limits on contributions to super PACs even within the framework of Citizens United.
In 2015, Free Speech For People launched a project to challenge SpeechNow, including through impact litigation (Lieu v. FEC, the lawsuit that could end super PACs), groundbreaking legislation in St. Petersburg and elsewhere, and developing and catalyzing research to support these efforts. Most recently, we received a favorable procedural ruling in Lieu v. FEC. It will take a little time to get there, but we’re bringing this issue to the U.S. Supreme Court.