Washington Post: Can Super PACs Be Put Back in the Box?

Matea Gold, national political reporter for the Washington Post, covering money and influence, put the spotlight on Free Speech For People in an article posted the evening of Wednesday, July 6.  In the piece, Gold outlines the latest legal advocacy efforts from FSFP, which include the Thursday, July 7th filing of a FEC complaint targeting super PAC spending.

Free Speech For People, representing a bipartisan group of congressional members and candidates, put forward the complaint as part of an innovative strategy that focuses on a lesser known case, SpeechNow.org v. FEC, which we argue unleashed super PACs and birthed the current political atmosphere. Gold writes,

Their immediate target is not Citizens United v. Federal Election Commission, the polarizing decision handed down by the Supreme Court that year. Instead, they are going after a lesser-known case decided by U.S. Court of Appeals for the D.C. Circuit just two months later: SpeechNow.org v. FEC .

That decision, citing Citizens United, permitted a conservative group to raise money beyond the contribution limits placed on traditional PACs because it planned to spend its funds independently of a candidate or party. In doing so, the appellate court paved the way for new political vehicles — later dubbed super PACs for their ability to accept unlimited amounts from individuals and corporations.

A team of attorneys including Laurence Tribe, a professor of constitutional law at Harvard University, and Richard Painter, who was the chief ethics lawyer for former president George W. Bush, are taking aim at SpeechNow.org with a new complaint they hope will reach the Supreme Court before the 2020 elections.

The thrust of their argument: The lower court erred in its interpretation of a line in the Citizens United decision, a mistake that unleashed a flood of money into elections that the Supreme Court never intended.

“The situation left in place by SpeechNow.org is one that Congress never enacted and people would never support,” Tribe said. “The law permits a very severe limit on the amount an individual can give to someone’s campaign, but at the same time that could be evaded by giving millions to super PACs. . . . The Supreme Court never approved anything like that.”

On Thursday morning, Free Speech For People “is filing a complaint with the Federal Election Commission on behalf of six members of Congress and congressional candidates against 10 super PACs. The effort cites groups across the political spectrum, including the Democratic House Majority PAC and the Republican Congressional Leadership Fund.”

We see this filing as a major opportunity to both challenge the doctrine of Citizens United and to challenge the SpeechNow.org ruling, which has widely been under-represented in the conversation on money in politics.

“People feel like the system they grew up with that gave a substantially proportional voice to each citizen has been replaced by a stadium sound system drowning out voices of the citizens,” said Sen. Jeff Merkley (D- Ore.), one of the lawmakers who is part of the challenge. “It tremendously feeds their cynicism.”

The other complainants are Rep. Ted Lieu (D-Calif.); Rep. Walter Jones (R-N.C.); John Howe, a GOP candidate in Minnesota; Zephyr Teachout, a Democrat running in New York; Michael Wager, a Democratic candidate in Ohio; Free Speech for People, a nonprofit legal advocacy group; and the nonpartisan Campaign for Accountability.

Our complaint asks the FEC to investigate super PACs for violating current election law by accepting contributions larger than the $5,000 donation limit set by “traditional” PACs. We also  argue that the FEC is not bound by the D.C. Circuit court’s ruling SpeechNow.org.

If the commission declines to investigate, the team plans to file a lawsuit in federal court that it hopes will eventually get considered by the Supreme Court.

Lead attorney Ron Fein, the legal director at Free Speech for People, said he believes their argument is one that “even a justice that joined the Citizens United decision” would support.

We will continue to update our supporters on the status of this filing and all related news. A press event will be livestreamed from the Capitol on Thursday, July 7 at 12pm EST, and can be viewed here.

To read the Washington Post article in full by Matea Gold, click here.

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