Last week I blogged about a liberal “dream team” effort to try to bring down Speech Now, initially through a complaint at the FEC. I called the effort a longshot, but not crazy, given that the Supreme Court could well swing to a liberal majority within a few years, and going after Super PACs first rather than directly against Citizens United could be a smart strategy for a new liberal Supreme Court that wants to appear minimalist/play the long game (e.g., the Reverse Roberts).
Since, then I noted that Marc Elias tweeted against the strategy, even given the goal of eventually overturning SpeechNow and Citizens United, and I have heard from other reformers who question the “dream team” strategy. The argument is that the standard of review which would apply to an FEC action is such that this is an impossible case to win: the FEC cannot go against the DC Circuit’s SpeechNow opinion, so any attempt to limit contributions to super PACs in violation of the SpeechNow case would not be seen by a court reviewing the FEC’s actions as “arbitrary and capricious.” A court reviewing these actions would not be in a position to reconsider the merits of the SpeechNow decision, much less Citizens United.
I’ve thought more about this and I think this critique is correct, and my earlier enthusiasm for this particular path to SCOTUS review misplaced. As I suggested, a far more straightforward way to tee up a SpeechNow challenge at a new liberal SCOTUS would be to find a liberal city (or state) that wants to enact (or defend an on-the-books existing) limit on contributions to independent expenditure committees. Those cases would most likely lose in the lower courts but would be explicitly geared to tee up the issue for SCOTUS consideration.
What’s the downside of the FEC strategy? First, it eats up resources of the reform community. Second, it will lead to an almost certain defeat, which will allow the anti-regulation folks to claim victories at both the FEC and in the courts. Think of the headline: “Court rejects challenge to legality of Super PACs.” It is not the end of the world, as it would not set a precedent to preclude another SCOTUS run, but it doesn’t seem like the strategy will yield positive dividends.