In 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 ruling of the U.S. Court of Appeals for the D.C. Circuit in SpeechNow.org v. FEC, which created super PACs.The plaintiffs are 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).
The case is presently before the U.S. Court of Appeals for the D.C. Circuit—the very court that decided SpeechNow in the first place. Under circuit rules, only an “en banc” (full) court, rather a three-judge panel, can overrule a prior circuit precedent. Normally, a panel will hear the case first, and then the party seeking to overrule circuit precedent may petition the full court to rehear the case en banc. However, on rare occasions the court will hear the case en banc from the outset. Since our case seeks the overruling of SpeechNow, we (supported by three separate amicus briefs) requested initial hearing en banc. Not unexpectedly, the court denied that request.
The case will now go to a three-judge panel, which for the moment will be bound by SpeechNow. After that panel decision, we can either petition the D.C. Circuit with a petition for rehearing en banc (which has better odds than asking at the very beginning), or proceed directly to petitioning the Supreme Court for certiorari review.
Image source: U.S. General Services Administration.