…To Reclaim Democracy

“For too long, opponents of campaign finance reform have set the agenda in the courts. Today, we’re taking back the initiative.”

While most people point to Citizens United as the case that opened the door to big money in U.S. elections, the lesser-known 2010 appeals court ruling in SpeechNow.org v. FEC is perhaps just as blameworthy—one legal scholar says the decision “gave birth to the super PAC takeover of American politics.”

Now, a bipartisan group of lawmakers, congressional candidates, and campaign reform advocates is taking aim at that ruling, filing a lawsuit on Friday that they say “will provide the U.S. Supreme Court the opportunity to end the super PAC threat facing our democracy today.”

The suit (pdf) names as defendant the Federal Election Commission (FEC), charging that the agency has failed to enforce $5,000-per-contributor limits that plaintiffs say are still in place—despite the U.S. Court of Appeals for the D.C. Circuit’s 2010 decision that federal law limiting such contributions did not apply to a political committee that promised to make only “independent expenditures.”

“That decision—which birthed the so-called ‘super PAC’ and radically transformed American politics as a result—rested entirely on the misapprehension of a single sentence in Citizens United to the effect that ‘independent’ expenditures, by definition, cannot corrupt,” the lawsuit reads.

“If true, so SpeechNow reasoned, then contributions to political committees that make only independent expenditures also cannot corrupt or even appear to do so,” it continues. “But SpeechNow‘s facile conclusion is flawed. It misconstrued Citizens United, ignores foundational distinctions between expenditures and contributions, and is belied by six years’ experience with unlimited and potentially collusive contributions to super PACs.”

Indeed, said lead plaintiff U.S. Rep. Ted Lieu (D-Calif.) on Friday: “Since the SpeechNow.org v. Federal Election Commission decision, the amount of money being spent on our elections has exploded, adding fuel to the public perception of election corruption.”

Or as Stephen Weisbrod of the law firm of Weisbrod Matteis & Copley put it, “[t]he actual facts on the ground show that the massive expenditures by super PACs are distorting our country’s politics and causing people to lose faith in our government institutions.”

The coalition notes that more than 40 percent of federal super PAC contributions, as of April 2016, had come from just 50 funders and their families. By late October 2016, federal super PACs had reported total receipts of more than $1.1 billion and total expenditures of more than $799 million.

Friday’s lawsuit is an effort to rein in those astonishing numbers.

“The FEC, and the courts, should and can apply federal law to stop super PACs from running amok, and this case is a vehicle for helping them to do that,” retired ambassador and former chief ethics counsel to President Barack Obama Norman Eisen said.

As the Washington Post explained:

Once the FEC takes up the complaint and dismisses it or deadlocks on it—as it is ultimately expected to do—the group plans to file a broader suit against the agency that it hopes will ultimately reach the Supreme Court. If they succeed, said the plaintiffs’ counsel Brad Deutsch, “the consequence is the death of the super PAC.”

“This is the start of a new chapter in the effort to reclaim our system from super PACs,” declared Ron Fein, legal director for the campaign finance reform group Free Speech For People. “For too long, opponents of campaign finance reform have set the agenda in the courts. Today, we’re taking back the initiative.”