More than six years after the Supreme Court’s Citizens United decision, the free-spending super PACs that many progressives consider a blight on American democracy are the target of a multi-pronged campaign to put them out of business.
Step one was a Federal Election Commission complaint earlier this month by pro-reform advocacy groups, lawmakers, and congressional candidates. The complaint takes legal aim at SpeechNow.org v. FEC, a lower court ruling that ushered in super PACs in the wake of Citizens United. Spearheaded by the campaign-finance reform group Free Speech For People, that complaint holds out the promise of a legal challenge that could wend its way to the Supreme Court. But it has met with skepticism from campaign-finance experts who contend that the strategy is destined to fail.
That explains step two, a local ordinance scheduled to be introduced July 21 by a council member in the beachfront city of St. Petersburg, Florida.
The ordinance would establish contribution limits for independent-expenditure committees, essentially abolishing super PACs in the city. The law would also require that corporations that contribute money to local elections certify that they are not wholly or significantly influenced by foreign entities. Supporters of this ordinance see it as model legislation that could be emulated across the country and as a potential vehicle for a legal challenge that could invite the Supreme Court to reconsider the constitutionality of super PACs. These PACs may collect unlimited sums from billionaire corporate donors, so long as they operate independently from candidates. In 2014, super PACs raised nearly $700 million, according to the Center for Responsive Politics, and oftentimes outspent the campaigns of the candidates they supported.
“This a serious issue in this country,” said Darden Rice, the St. Petersburg councilmember sponsoring the ordinance, in an interview. Super PACs “have a corrosive effect on our elections,” she continued. “City halls have basic, important duties, but we also have responsibility to look ahead, think creatively, seize opportunities to address issues that impact our citizens.” The number of super PACs in Florida has reportedly doubled since 2012, and donor contributions have soared, leaving the door open, Florida watchdogs say, to corruption or the appearance of corruption. And while outside spending has yet to take over St. Petersburg politics, Rice says she is introducing his ordinance as a preventive measure, which she regards as necessary since the city is set to consider a series of high-stakes capital projects, including a new baseball stadium.
The FEC complaint and the Florida ordinance are part of a multi-part challenge to the legality of super PACs spearheaded by the campaign-finance reform group Free Speech For People. The group and its allies are working with a “dream team” of lawyers, including Harvard University constitutional law professor Laurence Tribe, University of Chicago law professor Albert Alschuler, and former White House ethics counsel Norm Eisen, among others.
Their legal target is SpeechNow.org v. FEC. While Citizens United is widely blamed for big-money super PACs, it was SpeechNow that actually established the legal precedent for such PACs’ existence. In SpeechNow, the D.C. circuit court ruled that—in light of Citizens United—unlimited contributions to independent-expenditure political action committees do not give rise to corruption or its appearance, because those PACs are not coordinating with candidates or parties.
However, the supposed barrier between super PACs and candidates has proven, in practice, to be flimsy at best. FEC regulations permit candidates to attend super PAC fundraisers, as long as they don’t explicitly ask for more than $5,000, and super PACs are routinely run by the former campaign aides of the candidates they support. Campaign-finance reformers argue that there is ample evidence that SpeechNow has given rise to, at the very least, an appearance of corruption in American politics.
The logic behind the SpeechNow ruling isuntested in the the Supreme Court, which has not ruled on the matter, nor have the federal appeals courts in the 11th Circuit, which has jurisdiction over St. Petersburg. If the St. Petersburg ordinance passes, someone could very well challenge its legality, which could create an opportunity to bring SpeechNow before the Supreme Court. By then, reform advocates hope, a Democratic administration will have installed a new justice on the Court to replace the late Antonin Scalia, presumably creating a liberal majority that would jump at the chance to overturn the ruling. Even in its current deadlocked state, reformers think that the Court may be sympathetic to calls for re-establishing some limits on campaign spending.
Not everyone agrees with Free Speech for People’s strategy to abolish super PACs. This month’s FEC complaint sparked a rash of criticism from campaign-finance lawyers. The skeptics argue that because the FEC is in the D.C. circuit’s jurisdiction, the commission is required to adhere to the precedent established by the SpeechNow ruling, and is therefore barred from taking any action on the matter. If the complainants sue the agency for failure to act, critics say that the court’s focus would be limited to whether the FEC’s actions were “arbitrary and capricious,” and would not extend to the actual merits of the SpeechNow case.
“Let me be clear, I support overturning Citizens United. This is just a crazy way to try to do it,” Marc Elias, a Democratic campaign-finance lawyer who is representing two of the super PACs targeted in the complaint, posted on Twitter. “There are, in fact, several ways to effectively challenge [Citizens United]. This just isn’t one of them. And that is the real shame. A lot of effort, in the completely wrong vehicle.”
Ron Fein, legal director for Free Speech for People, disagrees. “The FEC, when pursuing enforcement action, pursues enforcement action of where the party does business,” Fein says. “We have parties where the federal district court has not adopted the precedent.” Fein argues that while a federal court examining the challenge could stick to the procedural issues, he ultimately expects the Supreme Court will take up the substance of SpeechNow.
The dispute over whether the FEC complaint could succeed helps explain the introduction of the ordinance in St. Petersburg. To some reform advocates, a local ordinance is a preferred legal vehicle for overturning SpeechNow and outlawing super PACs.
“I do think a more fruitful way to build a challenge is to go with local or state ordinances rather than trying to chase things at the FEC,” says Richard Hasen, an election law professor at the University of California, Irvine, who has criticized the FEC complaint. “You don’t get involved in D.C. circuit, and you can work to create a record” on the ground that illustrates how SpeechNow has fostered corruption or its appearance.
Both the FEC complaint and the St. Petersburg ordinance are just the first steps in Free Speech for People’s multi-pronged plan to remove what many regard as the scourge of super PACs from American politics—an ambitious goal that will likely take years to work its way through the courts.
“Our goal here is to give the Supreme Court the opportunity to step back from the brink,” says Fein, of Free Speech for People. “This case is about more than Speech Now and super PACs in particular. It’s also about moving from defense to offense. For too long, campaign-finance reformers have watched in dismay as [conservative Indiana lawyer] Jim Bopp has used courts to dismantle laws, but have not used courts affirmatively to get wins in that way.”