On Friday, January 13, the Federal Election Commission filed its response in the federal lawsuit that could end super PACs.
This case seeks the reversal of the 2010 lower federal court ruling in SpeechNow.org v. FEC, which unleashed super PAC spending in US elections, and which is vulnerable to being overturned by the U.S. Supreme Court. (See this October 2015 forum at Harvard Law School for background on why SpeechNow is vulnerable.) Furthermore, the legal theory for overturning SpeechNow does not depend on reversing any Supreme Court precedent, including Citizens United, and thus it was never premised on any assumptions about changes to the composition of the Supreme Court.
In July 2016, on behalf of a bipartisan coalition of Members of Congress and 2016 congressional candidates, and with a bipartisan team of leading constitutional scholars and experts, we initiated this legal challenge with an administrative complaint before the FEC. Representative Ted Lieu (D-CA-33), Senator Jeff Merkley (D-OR), and Representative Walter Jones (R-NC-3) serve as the lead plaintiffs. Our administrative complaint asked the FEC to enforce the federal limit on contributions to political committees ($5,000 per year) against a bipartisan group of super PACs that had received, in some cases, individual contributions of millions of dollars.
When the FEC failed to act within the 120-day time frame provided by the Federal Election Campaign Act, on November 4, 2016 we filed suit to compel the FEC to act, under a law authorizing “[a]ny party aggrieved . . . by a failure of the Commission to act on such complaint during the 120-day period beginning on the date the complaint is filed” to sue in federal district court in Washington D.C.
The FEC’s response denies that it has failed to act on our complaint to date, or that its failure to act is “contrary to law.” In other words, the FEC is not arguing that its hands were tied by SpeechNow, or that there is some other reason why our argument is wrong on the merits. Instead, the FEC is just arguing that it hasn’t done anything wrong by sitting on our complaint for six months.
We will provide another update at the next phase of the litigation.
To download a PDF of the FEC’s response, click here.
Free Speech For People, a national non-profit public interest organization founded on the day of the US Supreme Court’s ruling in Citizens United v. FEC, serves as co-lead counsel for the plaintiffs, along with the Campaign for Accountability; Brad C. Deutsch and the law firm of Garvey Schubert Barer; and Stephen A. Weisbrod and the law firm of Weisbrod Matteis & Copley. Mr. Deutsch served as lead counsel to the 2016 presidential campaign of Senator Bernie Sanders, and previously served for eight years as Chief of Staff and Senior Legal Advisor to Commissioner Steven T. Walther at the Federal Election Commission. The legal team also includes a bipartisan group of distinguished scholars and practitioners in the law of the First Amendment, corruption, and government ethics: Professor Laurence Tribe (Harvard Law School); Professor Albert Alschuler (Univ. of Chicago Law School, emeritus); Ambassador (ret.) Norman Eisen (former chief ethics counsel to President Barack Obama); and Professor Richard Painter (Univ. of Minnesota Law School, and former chief ethics counsel to President George W. Bush).