Featured Case: Lieu v. FEC - a legal challenge to super PACs

On November 4, 2016, Free Speech For People, on behalf of a bipartisan coalition of Members of Congress and 2016 congressional candidates, filed a lawsuit against the Federal Election Commission to abolish super PACs.  The lawsuit, filed in federal district court in Washington, D.C., sought the reversal of the 2010 federal appeals court ruling in SpeechNow.org v. FEC, which created super PACs. The plaintiffs were 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).

On June 18, 2020, we filed a petition for certiorari review in the U.S. Supreme Court, led by our Supreme Court lead counsel, Professor Jeffrey Fisher, Co-Director of the Stanford Supreme Court Litigation Clinic.

Unfortunately, on November 9, 2020, the Supreme Court denied certiorari. The untimely passing of the late Justice Ruth Bader Ginsburg, and the elevation of Justice Amy Coney Barrett in her stead, changed the dynamic on the Court. We are disappointed that the Court did not take this opportunity to review SpeechNow, but we can understand why justices who might have been inclined to take such an opportunity with Justice Ginsburg on the bench might conclude that they do not presently have the votes. We intend to present this issue to the Court again at some point in the future. The SpeechNow ruling, unleashing super PACs in our elections, will not stand the test of time.

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The vulnerable lower court ruling that created super PACs

“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. FECIn 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.

Watch Now: Ending super PACs - is SpeechNow vulnerable?

Cutting-edge legislation to end super PACs

Free Speech For People has researched, drafted, and fought for state and local legislation to limit contributions to independent expenditure committees, thus effectively ending super PACs.

To learn more, visit the pages for our legislative campaigns:

St. Petersburg, Florida

(enacted November 2017)

Seattle, Washington

(introduced 2019)

Massachusetts

(introduced 2019)

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