Today, Citizens for Responsibility and Ethics in Washington (CREW) submitted an amicus brief in Lieu v. Federal Election Commission, the case that could end super PACs. The brief argues that the DC Circuit erred in SpeechNow.Org v. FEC when it created super PACs, and that the full Court should reconsider that decision. CREW’s brief makes three main points.
First, CREW argues that experience has disproven SpeechNow‘s assumption that contributions to super PACs, no matter how big, could never corrupt; in fact, explicit quid-pro-quo corruption stemming from super PAC contributions has led to criminal prosecutions. And contrary to SpeechNow‘s claim that “there is no corrupting ‘quid’ for which a candidate might in exchange offer a corrupt ‘quo,'” real-world empirical data shows just how much candidates value contributions to super PACs.
Second, CREW shows that SpeechNow’s assumption that super PAC contributions would be transparent has also proven false: huge sums flow into elections from unknown sources, potentially even from outside the United States. As CREW notes, this facilitates corruption:
The ability to funnel unlimited, untraceable money into super PACs makes it ever-easier to keep the sources of election spending hidden. But, “[w]hile the public [is] not … fully informed” about super PAC contributors, “candidates and officeholders” most assuredly are, McConnell v. FEC, so they know who to thank for the “corrupting ‘quid,’” SpeechNow.
Finally, CREW rebuts the Federal Election Commission argument that its decision should avoid judicial scrutiny if it was “reasonable.” It’s worth noting that more than a third of the current litigation against the FEC has been filed by CREW, including a recent case (which we cited in our briefs) in which the district court rejected a similar argument from the FEC. In this case, the district court agreed with us and with CREW on this point, but the FEC continues to argue that its decisions, even when based completely on a question of interpreting the U.S. Constitution, are entitled to deference.
We appreciate the helpful contribution made by CREW.
Read the amicus brief.
Read CREW’s blog post about the brief.