January 27 marks the eighth anniversary of oral argument in the case that created super PACs. Contrary to popular belief, super PACs were not created by the Supreme Court in Citizens United, but rather by a subsequent lower court decision called SpeechNow v. FEC, argued on January 27, 2010 (just six days after the Citizens United decision).
As we explained in 2015, there are significant cracks in the legal foundation that created super PACs, and several converging developments in election law, constitutional law and even criminal law suggest the end may be in sight.
As a matter of practical reality, empirical research shows that top donors to super PACs are generally the same people as top donors to candidates and political parties, with ample opportunities to exchange super PAC contributions for political favors in a quid pro quo corruption scheme, whether or not the super PAC “coordinates” its media purchases with the campaign. In fact, a federal judge recently went out of his way to reaffirm in a criminal bribery case that contributions to super PACs can be part of bribes, notwithstanding Citizens United, although he found that the particular facts of that case didn’t support a bribery charge.
As a matter of legal doctrine, as explained in a forthcoming article by a group of pre-eminent constitutional scholars, SpeechNow simply misapplied Citizens United: “In Citizens United the Supreme Court struck down limits on a political group’s expenditures while the issue in SpeechNow was the validity of limiting contributions to a political group.” That distinction between limits on expenditures versus limits on contributions is critical because since Buckley v. Valeo, the Supreme Court has recognized different standards of scrutiny for limits on contributions and limits on expenditures. 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.” Now, there’s good reason to think that Chief Justice Roberts and/or Justice Kennedy would be willing to overrule SpeechNow even if they are not prepared to retreat on Citizens United.
So how do we do it? Learn more about Lieu v. FEC, our federal lawsuit challenging SpeechNow (covered here in the Washington Post), and about our legislative efforts in St. Petersburg, Florida, Massachusetts, and elsewhere to challenge super PACs.