In a piece posted to Newsweek, Julius Kreeger professor emeritus at the University of Chicago Law School, Albert Alschuler and Carl M. Loeb University professor of Constitutional Law at Harvard University, Laurence Tribe discuss Super PACs and a little-known case called SpeechNow. Alschuler and Tribe explain that Citizens United may have set the stage for Super PACs, but it is the SpeechNow ruling and the Justice Department’s inaction that bear the greater responsibility.
It wasn’t the Citizens United decision that created this strange state of affairs. That case did not concern contributions at all. As the Supreme Court emphasized, Citizens United concerned “independent expenditures.”
Back in Buckley in 1976, the Supreme Court sharply distinguished between contributions and expenditures. In the years since Buckley, the Court has consistently struck down expenditure limits while upholding most contribution limits. The Citizens United opinion reiterated, “Contribution limits, unlike limits on independent expenditures, have been an accepted means of preventing quid pro quo corruption.”
But two months after Citizens United, in a case called SpeechNow, an appellate court in the District of Columbia held all federal limits on contributions to super PACs unconstitutional. The Supreme Court had said that independent expenditures don’t corrupt, and the D.C. court reasoned that, if a group’s expenditures don’t corrupt, the contributions that make these expenditures possible can’t corrupt either.
The sentence of the Citizens United opinion on which the D.C. court relied was what lawyers call dictum—a nonbinding aside. Much of the Supreme Court’s opinion suggests that this statement should not be taken literally. Moreover, the D.C. court did not explain how super PAC contributions could be distinguished from the campaign contributions whose limitation Buckley had upheld.
The Justice Department must now realize how badly it blew it. So, now what?
Citizens United might have set the stage, but SpeechNow and the Obama Justice Department’s failure to appeal it bear greater responsibility than the Supreme Court for unleashing super PACs.
If an appropriate case were to come before the Court and if even one member of the five-justice Citizens United majority were to conclude that SpeechNow went too far, the super PAC takeover of our democracy could be ended. The Justice Department should support efforts to secure a definitive Supreme Court ruling.
Last month, Alschuler and Tribe-amongst other professors-joined Free Speech For People and Harvard Law School for a special convening on SpeechNow and ending Super PACs. You can find out more about that panel and our work here: www.endingsuperpacs.org