In 2015, Free Speech For People began developing a legal strategy to bring new test cases that could win at the Supreme Court, even under the Roberts Court as it existed at that time. These test cases were designed to make jurisprudential progress without challenging Citizens United, and assumed that we would need to get at least one of the justices from the Citizens United majority on our side to prevail—most likely, Chief Justice Roberts. In fact, we had outlined some of the elements of this strategy in an American Constitution Society blog post in January 2015. Despites some changes in the composition of the Court since then, the core strategy of these cases remains the same—legal arguments designed to persuade one of the justices from the Citizens United majority—and they are even more vital to pursue today.
Ending super PACs
As one key element of this plan, we are working to end super PACs by overturning the court decision that created them. Contrary to popular belief, super PACs were not created by Citizens United, but rather by a lower court decision, SpeechNow.org v. FEC, which was decided by the U.S. Court of Appeals for the D.C. Circuit. The Department of Justice declined to appeal SpeechNow to the Supreme Court, and the issue has never been reviewed by the Court.
In November 2015, Professor Laurence Tribe of Harvard Law School explained (video; Newsweek op-ed) that the legal basis for the SpeechNow decision was wrong on the day it was decided, and at least one justice from the Citizens United majority would welcome a face-saving opportunity to rein in super PACs without needing to revisit Citizens United itself. A 2018 law review article by Professor Albert Alschuler, Professor Tribe, Ambassador (ret.) Norman Eisen (former chief ethics counsel to President Barack Obama), and Professor Richard Painter (former chief ethics counsel to President George W. Bush) explains this argument in further detail.
That is the premise of our strategy of challenging super PACs, through both a federal lawsuit in D.C. and cutting-edge legislation in St. Petersburg, Florida and elsewhere: a narrow argument that contributions to super PACs can create a risk of “quid pro quo” corruption.
Winning in the en banc D.C. Circuit
In the D.C. Circuit, which decided SpeechNow, we believe that the en banc (full) court may welcome an opportunity to reconsider SpeechNow. First, the court may appreciate the opportunity for more considered reflection in light of the developments of the past decade. SpeechNow was argued just six days after Citizens United, and few anticipated how it could lead to the creation of the super PAC—certainly not then-Attorney General Eric Holder, who 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.” The factual record, both in the case and in the judges’ understanding of the real world, shows how super PACs have threatened to swallow the entire campaign finance system.
Furthermore, the composition of the D.C. Circuit has changed: three judges who joined the SpeechNow decision (including its author) have left the court or taken senior status, and five new judges have joined the court since SpeechNow: one appointed by President Trump, and four appointed by President Obama. These new judges may have little compulsion to adhere to an earlier mistake.
Winning at the Supreme Court
On the Supreme Court, Chief Justice Roberts has long rejected a key element of SpeechNow’s reasoning: the proposition (stated as a throwaway line in Citizens United, but used as a fundamental premise of SpeechNow) that independent expenditures, unlike contributions to candidates, cannot corrupt.
To understand this point, we need a bit of background. The Citizens United decision concerned whether corporations can be banned from spending money to influence elections, and held that they could not. But after reaching that decision, the Citizens United opinion added a throwaway line (in lawyerly terms, “dictum”) about how independent expenditures are essentially worthless to candidates anyway. SpeechNow took that dictum, treated it as the holding of the case, and extended it to contributions to political committees that only make so-called independent expenditures. In other words, SpeechNow started from the premise that the Supreme Court really meant it when they said that independent expenditures cannot possibly create a risk of corruption because they are basically worthless to candidates, and then built from there.
Chief Justice Roberts and Justice Alito had earlier rejected that proposition. Joined by no one else, they wrote in FEC v. Wisconsin Right to Life II, “It may be that, in some circumstances, ‘large independent expenditures pose the same dangers of actual or apparent quid pro quo arrangements as do large contributions.’” And crucially, they have continued to adhere to this belief even after Citizens United. Chief Justice Roberts’s plurality opinion in the 2014 McCutcheon v. FEC decision, joined by Justice Alito, subtly undermined a key premise of the SpeechNow decision by expressly acknowledging that independent expenditures are valuable to candidates. In the context of discussing circumvention of contribution limits, Chief Justice Roberts noted:
We have said in the context of independent expenditures that “‘[t]he absence of prearrangement and coordination of an expenditure with the candidate or his agent . . . undermines the value of the expenditure to the candidate.’” Citizens United, 558 U. S., at 357 (quoting Buckley, supra, at 47). But probably not by 95 percent.
In other words, while the Court has long held (since its 1976 Buckley decision) that independent expenditures are worth less than expenditures by the candidates’ own campaigns, they are not worthless. In fact, Roberts believes that independent expenditures are worth at least 5% as much to candidates as direct contributions of the same amount. This acknowledgment is inconsistent with the loose language of Citizens United upon which SpeechNow relied.
Similarly, in two summary rulings on campaign finance issues following Citizens United, Chief Justice Roberts and Justice Alito split from other justices on the Citizens United majority. In one case (Republican National Committee v. FEC), the Court summarily reaffirmed a pre-Citizens United decision that is flatly inconsistent with SpeechNow. Justices Kennedy, Thomas, and Scalia dissented, but Chief Justice Roberts and Justice Alito did not. In the other, more recent case (Republican Party of Louisiana v. FEC), a three-judge district court wrote an opinion that, as we explain here, unmistakably contradicted SpeechNow. When the Supreme Court summarily affirmed in 2017, Justices Gorsuch and Thomas dissented, but Roberts and Alito again refused to join them.
Chief Justice Roberts may have broader concerns as well. Journalistic reports of the Court’s internal deliberations suggest that Roberts sought a far narrower opinion in Citizens United than Justice Kennedy’s final opinion. The explosion of multi-million-dollar contributions to super PACs following that decision and the resulting loss of faith in our democracy may have given him pause, as he is known to be concerned about the Supreme Court’s legitimacy with the public. (It is widely believed that this was his motivation for provided the deciding vote to uphold the constitutionality of the Affordable Care Act.) Roberts is clearly troubled by 5-to-4 rulings on contentious issues with all Republican-appointed justices on one side and all Democrat-appointed justices on the other. Finally, none of his writing in campaign finance cases indicates a desire to strike down all forms of campaign finance regulation; in fact, he wrote the majority opinion for the Court’s most recent decision upholding a law regulating campaign contributions.
Our challenge to super PACs has the same path forward as it has always had. We formulated the legal theory and the pathways to challenging it (through affirmative federal and state litigation, and passage of new legislation) under the assumption of building a five-vote Supreme Court majority that included Chief Justice Roberts as the most likely fifth justice; Justice Alito is also potentially in play.
Our legal strategy for challenging SpeechNow at the Supreme Court, formulated largely in 2015, remains viable today. This strategy is designed to secure swing votes from justices in the Citizens United majority by not asking them to overturn Citizens United itself: challenging super PACs requires only overturning a lower court decision that has been subtly undermined by Chief Justice Roberts and others.
While we might have hoped for a different Supreme Court, this strategy offers a path forward to achieve real progress, chip away at the foundations of Citizens United now, and lay building blocks for a future Court to overturn Citizens United itself.