“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.
Free Speech For People has demonstrated critical leadership in the fight to end super PACs. Here’s a roadmap to some of our key work.
The vulnerable lower court ruling that created super PACs
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.
- Newsweek, Who blew the lid off campaign contributions? (Dec. 10, 2015) (Albert Alschuler and Laurence Tribe)
- U.S. News, The beginning of the end of the super PAC? (Nov. 4, 2015) (Ron Fein)
Lieu v. FEC: the lawsuit that could end super PACs
Free Speech For People and an all-star team of legal scholars are representing a bipartisan coalition of Members of Congress and 2016 congressional candidates in a lawsuit challenging an earlier lower court decision that created super PACs. The lawsuit, now preparing for U.S. Supreme Court review, seeks the reversal of the 2010 federal appeals court ruling in SpeechNow.org v. FEC, which created super PACs. We are honored to represent Senator Jeff Merkley (D-OR) and Representative Ted Lieu (D-CA-33), as well as the late Representative Walter Jones (R-NC-3), along with three 2016 congressional candidates from both major parties.
To learn more, visit our Lieu v. FEC page.
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)
- Why Limits on Contributions to Super PACs Should Survive Citizens United, Albert W. Alschuler, Laurence H. Tribe, Norman Eisen & Richard W. Painter, 86 Fordham L. Rev. 2299 (2018)
- Limiting Political Contributions After McCutcheon, Citizens United, and SpeechNow, Albert W. Alschuler, 67 Fla. L. Rev. 389 (2015)
- The SpeechNow Case and the Real World of Campaign Finance (Part I), Stephen R. Weissman, Free Speech For People Issue Report 2016-02
- The SpeechNow Case and the Real World of Campaign Finance: Undermining Federal Limits on Contributions to Political Parties (Part II), Stephen R. Weissman, Free Speech For People Issue Report 2017-01
- Ending Super PACs: Is the SpeechNow Ruling Vulnerable?, video of panel at Harvard Law School (Oct. 9, 2015)