On Wednesday, August 16, we took the next step in Lieu v. FEC, the lawsuit that could end super PACs, by responding to the FEC’s efforts to stop our litigation before the court can even fully consider the issues.

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. We then filed an amended complaint, now challenging  the FEC’s dismissal of our administrative complaint. 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.

The FEC’s response

In July, the FEC responded to our amended complaint. It made two main arguments. First, it argued that since it had (finally) issued a decision on our July 2016 administrative complaint, the lawsuit was moot—and we shouldn’t be allowed to amend it to address the merits. In other words, the FEC is fighting our ability to even present the central issues to the court.

Second, the FEC argued that our amended complaint was “futile” because of the SpeechNow decision and an advisory opinion letter that the FEC issued after SpeechNow.

It’s true that our case pushes against a precedent of the D.C. Circuit. But when, for example, the plaintiffs in Brown v. Board of Education challenged school segregation in a federal district court, they expected that Plessy v. Ferguson would preclude the court from granting the relief they sought. As later events showed, however, their complaint was not futile. More recently, an organization called Citizens United challenged a campaign finance law that had been previously found constitutional by the Supreme Court. Although the trial court dismissed its claim, this claim, too, turned out not to be futile.

Wednesday’s filing

On Wednesday, we filed two briefs: a reply in support of our motion to amend the complaint, and an opposition to the FEC’s motion to dismiss our original complaint. Because the FEC decided to make a stand on a routine procedural motion to amend the complaint, much of the legal briefing is highly technical.

Finally, we also present a preview of the arguments on the merits of why SpeechNow should be overturned and why this case is an appropriate vehicle for doing so, even given the FEC’s opinion letter. But we argue that the court should not resolve this question in the context of a motion to amend the complaint; it deserves full briefing.

We have requested an oral hearing.

 

 Download Reply In Support of Motion to Amend[PDF]

 Download Opposition to FEC Motion to Dismiss [PDF]