The case that could end super PACs
On Friday, 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., seeks the reversal of the 2010 federal appeals court ruling in SpeechNow.org v. FEC, which created super PACs.
Representative Ted Lieu (D-CA-33), Representative Walter Jones (R-NC-3), and Senator Jeff Merkley (D-OR) are the lead plaintiffs in the litigation.
|Caption||Lieu v. Federal Election Commission|
|Court||U.S. District Court for the District of Columbia|
|Status||Filed brief opposing FEC’s motion to dismiss|
|Plaintiffs||Rep. Ted Lieu (D-CA-33), Rep. Walter Jones (R-NC-3), Sen. Jeff Merkley (D-OR), State Sen. (ret.) John Howe, Zephyr Teachout, Michael Wager|
|Defendant||Federal Election Commission|
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, both Justices Kennedy and Chief Justice Roberts have given signals that might suggest one or both 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.
Major case developments
- Administrative complaint (filed before FEC July 7, 2017)
- Complaint (Nov. 4, 2016)
- Amended complaint (June 22, 2017)
- FEC’s motion to dismiss complaint (July 17, 2017)
- FEC’s opposition to Lieu motion to amend complaint (July 17, 2017)
- Plaintiffs’ opposition to FEC’s motion to dismiss complaint (Aug. 16, 2017)
- Plaintiffs’ reply in support of motion to amend and supplement complaint (Aug. 16, 2017)
- FEC’s reply in support of motion to dismiss complaint (Sept. 5, 2017)
- Notice of supplemental authority (Oct. 12, 2017)
- Court order granting plaintiffs’ motion to amend complaint and denying FEC’s motion to dismiss (Mar. 7, 2018)
- FEC’s motion to dismiss amended complaint (May 7, 2018)
- Response to FEC’s motion to dismiss (June 13, 2018)
- FEC reply in support of motion to dismiss (July 2, 2018)
In the news
- Washington Post, Legal team seeking to undo super PACs files suit to push FEC to act (Nov. 4, 2016)
- Huffington Post, This could be the beginning of the end for super PACs (July 8, 2016)
- Washington Post, Can super PACs be put back in the box? (July 6, 2016)
- 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)
- Why Limits on Contributions to Super PACs Should Survive Citizens United, Albert W. Alschuler, Laurence H. Tribe, Norman Eisen & Richard W. Painter, Fordham L. Rev. (forthcoming 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)
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 lead counsel for the plaintiffs, along with 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).