Lieu v. Federal Election Commission - Free Speech For People

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.

Read our full statement on the denial of certiorari.

Supreme Court Proceedings

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Lower Court Proceedings

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In The News

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Research

Supreme Court Proceedings

Amicus brief in support of certiorari of states of Washington, Colorado, Connecticut, Delaware, District of Columbia, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, New Mexico, Pennsylvania, Rhode Island, Vermont, and Virginia

(July 22, 2020)

Amicus brief in support of certiorari of U.S. Senators Sheldon Whitehouse, Patrick Leahy, Tom Udall, Richard Blumenthal, Mazie Hirono, and Chris Van Hollen

(July 22, 2020)

Amicus brief in support of certiorari of former FEC Commissioner Ann Ravel

(July 21, 2020)

Amicus brief in support of certiorari of legal scholars of campaign finance

(July 22, 2020)

Amicus brief in support of certiorari of political scientists

(July 22, 2020)

Amicus brief in support of certiorari of empirical researchers on the appearance of corruption

(July 22, 2020)

Plaintiffs’ petition for certiorari

(June 18, 2020)

Government’s opposition to certiorari

(Sept. 21, 2020)

Plaintiffs’ reply in support of certiorari

(October 21, 2020)

Key Facts

Caption	Lieu v. Federal Election Commission
Court	U.S. Supreme Court
Docket No.	19-1398
Status	Certiorari briefing distributed for conference of 11/6/2020
Plaintiffs	Rep. Ted Lieu (D-CA-33), the late Rep. Walter Jones (R-NC-3), Sen. Jeff Merkley (D-OR), State Sen. (ret.) John Howe, Zephyr Teachout, Michael Wager
Defendant	Federal Election Commission

Background

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. Meanwhile, Chief Justice Roberts has given signals that might suggest he would be willing to sustain limits on contributions to super PACs even within the framework of Citizens United.

Lieu v. Federal Election Commission challenges the FEC’s failure to enforce the existing, still-on-the-books federal $5,000 contribution limit against six and seven-figure contributions to super PACs associated with both major political parties. See also our legislative efforts to end super PACs.

Legal Team

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, launched the case as lead counsel for the plaintiffs.

Supreme Court specialist Professor Jeffrey Fisher, Co-Director of the Stanford Supreme Court Litigation Clinic, served as the lead counsel in the petition for Supreme Court review.

The legal team also included a bipartisan group of distinguished scholars and practitioners in the law of the First Amendment, corruption, and government ethics, including: Professor Laurence Tribe (Harvard Law School); Professor Albert Alschuler (Univ. of Chicago Law School, emeritus); Professor Richard Painter (Univ. of Minnesota Law School, and former chief ethics counsel to President George W. Bush); and Malcolm Seymour, Brad Deutsch, Benjamin Lambiotte, and Andrew Goodman of the law firm of Foster Garvey. In the district court, Stephen A. Weisbrod and the law firm of Weisbrod Matteis & Copley served as local counsel.