We recently filed a petition for rehearing en banc in the U.S. Court of Appeals for the D.C. Circuit in Lieu v. Federal Election Commission, the case that could end super PACs. The goal of the Lieu litigation is to give the D.C. Circuit, or the Supreme Court, the opportunity to overturn the D.C. Circuit’s 2010 SpeechNow decision that created super PACs. A three-judge panel, citing SpeechNow, rejected our appeal. This brief asks for the case to be heard by the full (en banc) court of 11 active judges. Only the en banc court can overrule its own precedent, such as SpeechNow.
The petition explains why SpeechNow was wrongly decided, why the case presents a “question of exceptional importance” justifying en banc hearing, and why the structure of this case presents an appropriate opportunity for reconsidering SpeechNow.
The case has attracted the interest of three groups of amici curiae (friends of the court) supporting our challenge: U.S. Senator Sheldon Whitehouse; Citizens for Responsibility and Ethics in Washington; and a group of empirical scholars led by Professor Christopher Robertson of the University of Arizona Law School.
Contrary to a common misunderstanding, super PACs were not created by the Supreme Court’s Citizens United decision, but by a later decision of the intermediate 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.
Lieu v. Federal Election Commission seeks to present the courts with an opportunity to overrule SpeechNow. This case began in 2016, when Representative Ted Lieu (D-Cal.), the late Rep. Walter Jones (R-N.C.), Senator Jeff Merkley (D-Or.), State Senator (ret). John Howe (a Republican congressional candidate from Minnesota), Zephyr Teachout (a Democratic congressional candidate from New York), and Michael Wager (a Democratic congressional candidate from Ohio) filed an administrative complaint before the FEC, naming as respondents ten super PACs that had received contributions from single donors ranging from $300,000 to $5,000,000—far in excess of the existing, still-on-the-books federal $5,000 contribution limit.
If the D.C. Circuit does not agree to rehear the case en banc, the next step would be an appeal to the U.S. Supreme Court.
Read the petition for rehearing en banc.
Learn more about Lieu v. Federal Election Commission.
Learn more about our complete strategy for challenging super PACs and SpeechNow.