On Thursday, June 22, we took the next step in Lieu v. FEC, the lawsuit that could end super PACs, by directly challenging in federal court the Federal Election Commission’s refusal to enforce federal contribution limits against super PACs.

Background

Federal law limits contributions to political committees. But a lower court decision called SpeechNow.org v. FEC opened a loophole for “super PACs”: political committees that promise to make only “independent” spending. SpeechNow was argued in late January 2010, just six days after Citizens United, and decided two months later without any further briefing on the impact of that Supreme Court case. In SpeechNow, the lower court held that any limits on contributions to “independent expenditure political committees” (super PACs) violate the First Amendment freedom of speech of wealthy contributors.

The Attorney General at the time, Eric Holder, decided not to appeal to the Supreme Court, partly on the belief that “the court of appeals’ decision will affect only a small subset of federally regulated contributions.” We now know, of course, that super PACs are far more than just a “small subset”: in the 2016 election , federal super PACs raised $1.79 billion in the 2016 election cycle, which substantially exceeds the amounts raised by all federal candidates combined ($1.26 billion) or by political parties ($1.73 billion). And more importantly, while other courts of appeals have followed the D.C. Circuit’s lead, its reasoning is severely flawed, and it is vulnerable to being overturned by the Supreme Court. As explained in more depth here, there are good reasons to believe that Chief Justice Roberts, or perhaps Justice Kennedy, would be open to an opportunity to end super PACs by overturning a lower court decision, even if they are not willing to go back on Citizens United itself. But to do that, they need a case.

Our challenge

In July 2016, on behalf of a bipartisan coalition of Members of Congress and 2016 House candidates and with the benefit of a legal “dream team” including 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), we filed an administrative complaint with the FEC, asking it to enforce the still-on-the-books contribution limits against super PACs—the very limits that had been struck down in SpeechNow.

Our expectations for FEC action were low. The FEC is known for dysfunction and deadlock even in easy cases, and this case seeks to overturn an opinion of the U.S. Court of Appeals to which the FEC had already acquiesced. But of course, our goal was not to prevail at the FEC (though that would have been an added bonus). Rather, our goal is to get the constitutional question before the Supreme Court—and to do that, for this route of challenge, we first needed the FEC to issue a decision (any decision).

The FEC dragged its feet, so in November (with the assistance of experienced outside political law and litigation counsel) we sued them for delay in federal court—all so we could get an appealable decision to use as the vehicle to raise the fundamental constitutional question. Finally, in early June, the FEC issued its decision: unsurprisingly, declining to enforce the contribution limits.

Thursday’s filing

On Thursday, June 22, we filed an amended complaint, now challenging  the FEC’s dismissal of our administrative complaint. As we outlined in Thursday’s filing, because of the FEC’s dismissal of the administrative complaint, the plaintiffs will continue to be forced to raise money and campaign in a system that is subject to the risk and appearance of quid pro quo corruption (and other forms of corruption) through large contributions to super PACs that exceed the limits that Congress determined were necessary to protect against corruption.

We watched the  FEC dragged its feet last summer, so in November 2016 we  sued them for delay in federal court. Almost a year later, we are ready to enact our full legal strategy to reach an appealable decision that would raise the fundamental constitutional question of super PACs and corruption. This case will now present to the courts, include the Supreme Court, the opportunity to revisit the lower court’s SpeechNow ruling that created super PACs.

We’re ready for the next phase of our litigation against the SpeechNow.org v. FEC decision.  Check back in for updates.