“Why Limits on Contributions to Super Pacs Should Survive Citizens United”

Al Alschuler, Larry Tribe, Norm Eisen, and Richard Painter have posted this draft on SSRN. Here is the abstract:

Soon after the Supreme Court decided Citizens United v. FEC, the D.C. Circuit held all limits on contributions to super PACs unconstitutional. Its decision in SpeechNow.org v. FEC created a regime in which contributions to candidates are limited but in which contributions to “independent expenditure committees” urging votes for these candidates are unbounded.

No legislator ever voted in favor of this system of campaign financing, and the thought that the Constitution requires it is odd. Forty-one years ago, Buckley v. Valeo held that Congress could prohibit a $1001 contribution to a candidate because this contribution was corrupting or created an appearance of corruption. According to the D.C. Circuit, however, Congress may not prohibit a $20 million contribution to a super PAC because this contribution does not create even an appearance of corruption.

The D.C. Circuit declared that a single sentence of the Citizens United opinion compelled its result. The Supreme Court wrote, “[I]ndependent expenditures . . . do not give rise to corruption or the appearance of corruption,” and the D.C. Circuit declared, “In light of the Court’s holding as a matter of law that independent expenditures do not corrupt or create the appearance of corruption, contributions to groups that make only independent expenditures also cannot corrupt or create the appearance of corruption.”

This Article contends that, contrary to the D.C. Circuit’s reasoning, contributions to super PACs can corrupt even when expenditures by these groups do not. Moreover, the statement that the D.C. Circuit took as its premise was dictum, and the Supreme Court apparently did not mean this statement to be taken in the highly literal way the D.C. Circuit took it.

The Supreme Court distinguishes between contribution limits, which it usually upholds, and expenditure limits, which it invariably strikes down. This distinction does not rest on the untenable proposition that candidates cannot be corrupted by funds paid to and spent on their behalf by others. Rather, Buckley v. Valeo noted five differences between contributions and expenditures. A review of these differences makes clear that contributions to super PACs cannot be distinguished from the contributions to candidates whose limitation the Court upheld.

The ultimate question posed by Buckley is whether super PAC contributions create a sufficient appearance of corruption to justify their limitation. This Article describes opinion polls, the views of Washington insiders, and the statements of candidates of both parties in the 2016 Presidential election. It shows that SpeechNow has sharpened class divisions and helped to tear America apart.

The Justice Department did not seek Supreme Court review of the SpeechNow decision. In a statement that belongs on a historic list of wrong predictions, Attorney General Holder explained that the decision would “affect only a small subset of federally regulated contributions.” Although seven years have passed since SpeechNow, the Supreme Court has not decided whether the Constitution guarantees the right to give $20 million to a super PAC. A final section of this Article describes the efforts of the Article’s authors, other lawyers, Members of Congress, candidates for Congress, and the public interest organization Free Speech For People to bring that question before the Court. The Federal Election Commission is opposing their efforts on grounds that, if successful, could keep the Court from ever deciding the issue.

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