Does the New Assault on Super PACs from Liberal “Dream Team” Have a Shot? Maybe, in this Post-Scalia World

Larry Tribe, Richard Painter, Albert Alshuler, Norm Eisen, and Anne Weissman have joined together with the Free Speech for People team of Ron Fein, John Bonifaz and others to file this complaint with the FEC seeking to attack the SpeechNow decision, which opened up the door to Super PACs. The effort got this early coverage from Matea Gold of WaPo.

This has been on the agenda of FSFP for a while, and in the past I have been very critical of these efforts. (Indeed, I have long criticized John’s efforts with the NVRI to support Jim Bopp’s cert. petition in the early 200s in the Randall v. Sorrell case when there was a real chance for the 2d Circuit to allow Vermont to experiment with spending limits in the interim. Instead, John decided to mount a mis-timed frontal attack on the spending limits holding of Buckley).  It seemed pretty clear with the Roberts Supreme Court that SpeechNow followed from precedents like Citizens United (cited 13 times in the DC Circuit opinion in Speech Now), and the later McCutcheon case. That is, if SpeechNow came before the Supreme Court while Justice Scalia was still on it, the government surely would have faced defeat, and the risk is that the Supreme Court could have made things even worse (such as by applying strict scrutiny to the review of campaign contribution limits). That’s why the government never tried to take SpeechNow to the Supreme Court after losing unanimously in the DC Circuit.

But now things have changed with the death of Justice Scalia, and there is a narrow path to a Supreme Court victory. There’s no way that the new complaint gets anywhere the the deadlocked FEC. If the FEC Republican commissioners won’t even enforce the weak disclosure laws we have, they are not going to bite on this. But this is teed up for eventual review in the courts. And I expect in the lower courts this complaint will gain no traction too. I argued and lost a SpeechNow type issue against Jim Bopp in the 9th Circuit, and it is pretty clear that under existing precedent a lower court is almost certain to say that following Supreme Court precedent, one has a constitutional right to make unlimited contributions to a group that makes only independent expenditures favoring or opposing a candidate, because such contributions and spending uncoordinated with the candidate can neither corrupt nor create the appearance of corruption.

So this means that in 2-3 years, we could have a case teed up before the Supreme Court. And what happens then?  If you can tell me who is sitting on the Supreme Court in 2-3 years I might have an answer for you. If we have a five-liberal/Democratic Justice majority on the Supreme Court, there’s a chance that the Court finds that such contributions can be constitutionally limited. There would be a way to write an opinion that does not formally overturn Citizens United but that limits Super PACs, an issue the Supreme Court has not squarely addressed. The Court could say that now there is evidence that these large contributions to independent groups at least create the appearance of corruption. That in turn could provide the first step in laying the groundwork for overturning Citizens United in a future case, much like the WRTL case laid the groundwork for the Court’s conservatives to overturn Austin and part of McConnell later in the Citizens United case.

To be clear—this is not the path I would want the Supreme Court to take to overrule CU (which I very much want to see). Rather than continuing to contort the definition of corruption, I’d like to see a liberal Supreme Court forthrightly embrace political equality as a reason for limiting money in elections, so long as it can be shown that the system will still allow ample means of communicating and having robust elections. (If that makes me a neoliberal, so be it.)  But I have no reason to believe the liberal Justices will be so forthright and intellectually honest should they decide to go down the path of eventually overruling Citizens United. They will do so incrementally, and by purporting to overturn as little beyond CU as possible.

Of course, if we have a conservative majority on the Supreme Court at the time this case makes it there, I expect this effort will fail as it would have before Justice Scalia’s death.

So the new filing is a longshot move, but it is not crazy by any means at this point given the flux in which we find the Supreme Court.

UPDATE: See my updated post, It the Attack on Super PACs Through the FEC a Mistake? I Now Think Yes.

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