Can the Federal Election Commission enforce existing federal laws restricting contributions to political committees if those committees promise to make only “independent” expenditures? The FEC seems to say with one hand that it can’t (which is why we have super PACs), but with the other hand that it can.

The problem began with a 2010 U.S. Court of Appeals case called SpeechNow.org v. FEC. SpeechNow, not the Supreme Court’s Citizens United decision, created super PACs. SpeechNow’s theory was that contributions to political committees that only make “independent” expenditures cannot possibly cause corruption or its appearance, and thus cannot be limited. The FEC decided not to appeal SpeechNow to the U.S. Supreme Court, despite serious flaws in its reasoning that should have been apparent even then, and are glaringly obvious now.

So last year, on behalf of a bipartisan group of members of and candidates for Congress, we filed Lieu v. FEC. This is a groundbreaking lawsuit designed to create a test case for the U.S. Supreme Court, which has never considered the issue. At least one justice from the Citizens United majority may welcome the opportunity to undo a lower court decision that caused great harm to our democracy, even if they are not ready to overrule their own Citizens United decision.

In Lieu, the FEC insists that, because of SpeechNow, it cannot enforce a restriction on contributions to super PACs. But in a quietly issued decision in an enforcement case against Suffolk Construction Company, the FEC found that the company’s contributions to a pro-Hillary Clinton political committee violated a federal prohibition on political contributions from government contractors—even though the political committee was a super PAC.

To sum up: in our case, the FEC insists that, because of SpeechNow, it cannot enforce a restriction on contributions to super PACs. But in the Suffolk Construction case, the FEC did just that, thereby showing that the FEC believes that it can enforce restrictions on contributions to super PACs in some contexts. To be sure, the Suffolk Construction case involved contributions by a government contractor, and involved a different federal contribution restriction. But the underlying constitutional issue is the same: whether contributions can cause corruption or its appearance if made to a political committee that makes only independent expenditures.

So which is it? We submitted a Notice of Supplemental Authority to the court, pointing out the contradiction. Maybe the FEC can explain why it cannot possibly investigate Chevron for a $2,000,000 contribution to a super PAC (as we alleged in our case), because making super PAC contributions supposedly cannot cause corruption or its appearance, yet the FEC can penalize Suffolk Construction for doing exactly that. To be clear, the FEC has the right position in the Suffolk Construction case and the wrong position in ours—not the other way around. But the inconsistency is glaring.

In the meantime, super PACs are already gearing up for the 2018 elections. We hope to have our case before the Supreme Court in time for 2020.

Download our Notice of Supplemental Authority [PDF]