The Biggest Dark Money Case Since CREW v. FEC

By John House


Photo by Pepi Stojanovski on Unsplash

Without a doubt, the most important Dark Money case to come along since CREW v. FEC is Lieu v. FEC. CREW v. FEC challenged the Federal Election Commission’s own interpretation of its rule regarding disclosure of expenditures. The court’s decision resulted eventually in the current rule, which requires persons other than political committees who make political expenditures greater than $250/year to report to the commission. Lieu is of far greater import, challenging the 2010 SpeechNow.org v. FEC, which enabled the creation of Super PACs. Please read this July 22 press release by Free Speech for People, which filed the appeal, for more.

Press Release

WASHINGTON, D.C. (July 22, 2020) – Sixteen states, led by Washington State, today filed an amicus brief before the Supreme Court, urging the nation’s highest court to review a landmark case seeking to end super PACs in U.S. elections. Six U.S. Senators, led by Senator Sheldon Whitehouse of Rhode Island, filed a separate brief in support of Supreme Court review of the case. The case, Lieu v. Federal Election Commission, brought on behalf of members of Congress and congressional candidates, directly challenges the 2010 federal appeals court ruling in SpeechNow.org v.FEC. That decision, which struck down a longstanding contribution limit in the Federal Election Campaign Act, led directly to the creation of super PACs.

The states joining the amicus brief include Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, New Mexico, Pennsylvania, Rhode Island, Vermont, Virginia, and Washington State, as well as the District of Columbia.

The U.S. Senators joining the amicus brief include Senator Richard Blumenthal of Connecticut, Senator Mazie Hirono of Hawaii, Senator Patrick Leahy of Vermont, Senator Thomas Udall of New Mexico, Senator Chris Van Hollen of Maryland, and Senator Sheldon Whitehouse of Rhode Island.

Other parties filing amicus briefs today in support of Supreme Court review of this case include former FEC Commissioner Ann Ravel; election law scholars Abby Wood, Richard Briffault, Rebecca Brown, Yasmin Dawood, Michael Gilbert, Burt Neuborne, Bertrall Ross, Douglas Spencer, and Franita Tolson; political scientists Stephen Weissman, Robert Boatright, Anne Baker, Diana Dwyre, Anthony Corrado, John Green, and Clyde Wilcox; and appearance-of-corruption researchers Christopher Robertson, Kelly Bergstrand, and D. Alexander Winkelman.

The national public interest organization Free Speech For People, which launched Lieu v. Federal Election Commission as lead counsel for the plaintiffs, is serving as co-counsel in the petition for Supreme Court review, alongside a bipartisan group of distinguished legal scholars, which includes Professor Jeffrey Fisher (Stanford Law School; lead counsel for the Supreme Court phase of the litigation), Professor Laurence Tribe (Harvard Law School), Professor Albert Alschuler (University of Chicago Law School, emeritus), and Professor Richard Painter (University of Minnesota Law School and former chief ethics counsel to President George W. Bush). The legal team also includes the law firm of Foster Garvey.

Lieu v. Federal Election Commission was filed in federal district court in Washington, D.C., in November 2016 on behalf of 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 lawsuit seeks the reversal of the March 2010 federal appeals court ruling in SpeechNow.org v.. FEC. In that decision, the U.S. Court of Appeals for the D.C. Circuit ruled that the federal law limiting contributions to political action committees to $5,000 per person per year could not, under the Constitution, apply to political committees that promised to make only “independent” expenditures, thus unleashing super PACs. Contrary to a common misconception, however, this result was not required by the Supreme Court’s earlier ruling in Citizens United v. FEC, and the Supreme Court can reverse the D.C. Circuit’s decision in SpeechNow without revisiting Citizens United.

SpeechNow has ushered in a decade of unprecedented contributions to Super PACs from a small pool of ultra-wealthy donors,” write the state attorneys general in the amicus brief spearheaded by Washington State Attorney General Bob Ferguson. “Super PACs have, in turn, spent billions of dollars in federal, state, and local elections. This torrent of undisclosed money has corroded public confidence in elected officials representing the states in Congress, the election process, and the very importance of voting, leading many Americans to believe that their individual votes cannot matter in the face of such massive contributions from a powerful few.”

“A tsunami of special interest money is drowning out Americans’ voices and corrupting our democracy,” says Senator Whitehouse. “At the center of the tidal wave are Super PACs through which corporations and billionaires run unlimited money to push their political agendas. With the ability to donate unlimited money comes the ability to threaten unlimited donations, allowing big special interests to control politics without ever donating a cent. That is a clear recipe for corruption. It’s time for the Supreme Court to uphold sensible contribution limits and overturn SpeechNow.”

“The Supreme Court has long said that money in politics could be regulated when it appears to be quid pro quo corruption. Our research with a broad panel of thousands of Americans shows that they see large contributions to super PACs to be exactly that,” says Boston University School of Law Professor Christopher Robinson. Robinson, Bergstrand, and Winkelman have conducted empirical research showing that large contributions to super PACs create the appearance of corruption, which the federal appeals court in SpeechNow maintained they could not.

“Since 2010, the assumptions on which SpeechNow relied have been proven incorrect. As a result, SpeechNow created a campaign finance system that Congress did not enact and which has made the majority of Americans believe is corrupt,” says former FEC Commissioner Ann Ravel.

“Super PACs accepting unlimited contributions spend nearly one in every four federal election campaign dollars, concentrated on the most competitive races,” says political scientist Stephen R. Weissman. “They enable million-dollar, even tens of millions of dollars, donors to support organizations marketing and conducting themselves as extensions of candidates’ and parties’ campaigns — regardless of federal contribution limits applying to those campaigns. Thus, Super PACs undermine the contribution limits that are the very basis of the federal campaign finance system.”

“In keeping with the Supreme Court’s typical practice, the Justices of that Court – not judges on a lower court – should decide the enormously consequential constitution question whether Congress has the power to regulate contributions to Super PACs,” says Professor Jeffrey Fisher, Co-Director of the Stanford Supreme Court Litigation Clinic and lead counsel on the petition for review. “The Court’s attention is all the more imperative here because the court of appeals has so plainly overread Citizens United. That decision established a new rule regarding corporate campaign expenditures, but it did not alter the Court’s long-standing jurisprudence allowing Congress to regulate contributions to candidates and closely related entities. We’re grateful for the groundswell of amicus support.”

“Super PACs weren’t created by Congress or the U.S. Supreme Court. They were created by a lower court decision, based on faulty assumptions, that has never been reviewed or revisited,” says Ron Fein, Legal Director of Free Speech For People. “It’s been a decade since the D.C. Circuit unleashed super PACs on our democracy, and it’s clear that the experiment has failed. We look forward to giving the Supreme Court the opportunity to reverse the SpeechNow decision so we can rebuild our democracy. We’re grateful for the support of these friends of the Court who recognize the importance of this case.”

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To read the amicus briefs, and for more information about the case, visit: freespeechforpeople.org/lieu.

John House is a retired attorney from Los Angeles, CA, who moved to Santa Fe, New Mexico in 2007. He is President of RepresentUs New Mexico