SuperPAC Case Supported by AG Weiser Hits Supreme Court Wall

by Hank Lacey

A lawsuit supported by Colorado attorney general Phil Weiser that aimed to clarify whether Congress and state legislatures can limit superPAC contributions has come to a crashing halt at the U.S. Supreme Court. The justices declined Monday to take up the case, which would have opened the possibility of reconsidering a controversial 2010 campaign finance ruling.

Weiser joined with the attorneys general of 15 other states as parties supporting the arguments of several members of Congress. The states argued that contributions from well-financed PACs that accept huge donations have begun to have a significant impact on state and local elections and are resulting in increased corruption. They urged the Supreme Court to take up the question considered by a lower court ten years ago: whether the U.S. Constitution’s Freedom of Speech clause limits regulation of superPAC contributions.

U.S. Rep. Ted Lieu, D-Calif., the late U.S. Rep. Walter Jones (R-N.C.), Sen. Jeff Merkley, D-Ore., and several other individuals filed the lawsuit as a way to get a decade-old decision of the U.S. Court of Appeals for the District of Columbia Circuit before the high court. In that 2010 decision, which came in a case called SpeechNow.org v. Federal Election Commission, the D.C. Circuit ruled that the First Amendment precludes enforcement of a limit on organizations’ contributions to independent political action committees commonly called superPACs. The court found that “independent expenditures do not corrupt or give the appearance of corruption.”

Chris Murray, a partner at Brownstein Hyatt and the general counsel of the Colorado Republican party, said that the holding of SpeechNow has been persuasive around the country. “The reach of it has been universal, across the United States,” he said. “The SpeechNow case, in fairness, takes what a lot of folks thought was clearly implied in Citizens United and makes it explicit.” Several other federal circuit courts of appeal have since adopted the same rule as did the DC Circuit.

The Lieu case was not only important because it would have given the justices an opportunity to further explore the reach of Citizens United. Professor Doug Spencer, a faculty fellow at CU’s Byron White Center for the Study of American Constitutional Law and a professor of law and public policy at the University of Connecticut, explained that it also presented the most important issues surrounding the role and limits of superPACs in one case. “It distills the three most important aspects of campaign finance law into one case. First, how broadly or narrowly to read the First Amendment in campaign finance [law], second, how close of a textual reading do we want to give to these statutes that Congress passes, and third, how relevant empirical evidence is,” he said.

SpeechNow means, Murray said, that individuals can donate any amount of money to superPACs. “Citizens United basically said, ‘hey, look, spending money stating a message that you want to state, whatever it is, that’s a First Amendment right because spending that money is speech,’ in the same way that the Court has found that other actions are speech,” he said. What the DC Circuit did in SpeechNow is to extend the Supreme Court’s reasoning to contributions to superPACs. “[The justices] said, ‘Look, if you’re not coordinating your message with a candidate, if you’re not giving it to a candidate, then how could you possibly corrupt that candidate with spending they don’t have any control over?’” Murray explained. “The Speech Now case from the DC Circuit basically extended that to contributions.  They said, “Look, if spending on something the candidate doesn’t control can’t be quid pro quo corruption or its appearance, then donating to independent spending certainly can’t do that. Therefore, the First Amendment trumps.”

For Spencer, who filed a brief in support of the petition for certiorari in SpeechNow, that is a naive and dangerous understanding of how campaign finance rules affect the workings of American politics. He pointed out that the Bipartisan Campaign Reform Act of 2002 prohibits unregulated “soft” money donations to political parties. This was done, Spencer explained, not as a way to “prevent corruption, but to recognize that parties were really closely connected to candidates and they didn’t trust them to be able to separate out their candidate-supporting behavior and their independent actions doing get-out-the-vote campaigns.” He said that SpeechNow contradicts that understanding of the likelihood of corruption. “I think, empirically, it’s been shown that superPACs are at least as close as parties are to the candidates.”

In theory, superPACs should be operating independently of political parties and candidates. Murray explained that this requirement of a so-called independent expenditure is a bright-line feature of campaign finance law on superPACs. “You can’t really talk about [the expenditure that pitches a message] before the speech is made,” he said. “You can talk about it after. Once an independent expenditure is made it’s perfectly okay for a candidate to call a committee that made those expenditures. But it’s not okay for a candidate, beforehand, to try and sculpt that message.”

Of course, the question whether any candidate is ever actually independent of a superPAC is not so clear-cut.  “On the superPAC front, it’s 100 percent sure there’s going to be expenditures that are independent,” Spencer said. “But what about the contributions? You signal to a candidate that you’re on her team and that you’re willing to give resources. So, yes, I’m going to give it ‘Restore America’ instead of you directly, but we’re both sitting at the same table with Restore America’s fundraiser and you’re going to walk out of the room when I write my check so that we can pretend like there’s no coordination.”

Whatever the risks they pose to the integrity of the American political system, superPACs have now become ubiquitous. They exist to support politicians in both major parties and, Murray explained, they are especially likely to be a factor in presidential campaigns. “Just wait, for example, for the 2024 primaries,” he said. “Allow your mind to go to that dark place for just a minute. Starting around, I would be willing to bet, late ‘22 or early ‘23, for sure, there will be people – Republicans – beginning to test the water for President. In addition to forming exploratory committees, I guarantee you [that] wealthy friends of theirs who are encouraging them to run will probably be saying something like the following to them: ‘Hey, so and so Republican senator or governor, if you decide to get in, we want to start an independent effort to support you.’”

“Why would they do that?,” Murray continued. “Because initially in a presidential primary, until all of a sudden you’re the guy or you’re the gal, it’s hard to raise money. You’re not going to be running for president if you don’t have several well-heeled benefactors.” 

That phenomenon has been apparent in the recently-ended 2020 presidential race. According to OpenSecrets.org, superPACs and other wealthy interests spent $1.2 billion just during October. The organization estimates that more than $14.4 billion was spent to influence the election of the country’s chief executive. This, Spencer says, is actually an indication that our presidential elections may now be more about loyalty to the goals of superPACs than to the public interest. “More than half of superPACs that support presidential candidates are single candidate groups and the candidates know who gives to those groups because they go to their fundraisers and, sometimes, they even direct people to those groups,” he explained. “I think there’s strong enough evidence to cast doubt on the idea that they’re really acting independently.”

“I’ve analogized superPACs to motorcycle side cars,” he continued. “They’re kind of ostensibly different vehicles, but they’re attached to the motorcycle and they’re riding alongside.”

Not that superPAC contributions are the only sources of money for politicians’ campaigns. Traditional PACs and contributions to candidate committees or to political parties, which do face maximum contribution limits, still play a role in the American system of campaign finance. So do fundraising platforms like ActBlue, which supports Democratic candidates, and WinRed, which supports Republicans. These organizations fundraise in a manner similar to the way campaign staffers for candidates have long done it, except they focus on small dollar donations. It’s done, Murray said, “mainly online through small dollar donors.”  “They tell their donors, ‘Hey, if you give to us, there’s a whole waterfall of people that we give donations to’ and they go to campaigns and say, ‘If you fundraise through us and pay a percentage, you’re going to have access to all these small dollar donors that it wouldn’t be worthwhile for you to cultivate on your own because they’re only giving five or seven bucks at a time,'” he continued.

Both ActBlue and WinRed play huge roles in politics. The New York Times reported on Oct. 16 that ActBlue received $1.5 billion between July 1 and Sept. 30. During the same period WinRed raised $623.5 million. Since being established in 2004, donors have given nearly $8 billion to ActBlue, according to its website. WinRed was not created until 2019; it has raised over $1 billion as of mid-October. Spencer, describing potential state-level campaign finance reform initiatives, said that he has noticed a general trend toward “trying to get more money from the bottom up,” meaning from small dollar donors to campaigns.

Whether superPACs deter voting or lessen citizen interest in election campaigns is one possible side effect of the “unique” American system of paying for elections, as Spencer described it. “I think, importantly, the money system changes the pool of people who run for office,” he said. “We get different sets of candidates. I think those candidates are generally more wealthy than average, more elite than average, and that has an impact on voting because the average Joe doesn’t see two main candidates that look like him.”

That may not be the only voting depressant that comes from the role of superPACs, Spencer said. “The other way [involves] the Supreme Court’s concern that money in politics will create an appearance of corruption and general skepticism that the fix is in,” he explained. “I think when people feel like the fix is in, they’re less likely to turn out and vote because they feel like this is all being resolved by who raised the most money and who’s the richest.”

In any case, according to Brownstein Hyatt’s Murray, money in politics is likely to be part of the nation’s system for choosing those who govern for the foreseeable future. “Money in politics, it is like a pneumatic device,” he said. “If you close down one place, the air is going to go someplace else. You close that, the pressure is going to build and it’s going to find its way out someplace else.” He explained that the flow of money to politicians is the result of the role governments play in the life of the nation. “For better or for worse, our government, both at the state and federal and even at the local level, controls so much of our economic and even daily lives that the pressure to influence it is absolutely massive.,” he said. “Especially at the federal level, until and unless you saw less involvement of the federal government in everyday economic decisions and in life, and until you see that, you’ll never see money out of politics. It’s going to find its way in somehow.”

The denial of certiorari in the Lieu case ends that litigation. Its namesake plaintiff, U.S. Rep. Ted Lieu, D-Calif., said in a statement that he is “extremely disappointed” by the Court’s decision not to consider the issues decided in the SpeechNow case.  Aside from Colorado, the other states that supported the plaintiffs as amici were Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, New Mexico, Pennsylvania, Rhode Island, Vermont, Virginia, and Washington. The District of Columbia also joined the amicus brief.

The case is Lieu v. Federal Election Commission, No. 19-1398.

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