Bipartisan Group of Lawmakers Sues FEC to Rein in Super-PAC Spending

Tuesday, November 08, 2016
Rep. Ted Lieu (photo: Tom Williams, Getty Images)

By Britain Eakin, Courthouse News Service

 

WASHINGTON (CN) — Already looking past Election Day, a bipartisan group of lawmakers and congressional candidates have brought a federal complaint against the Federal Elections Commission to rein in super-PAC spending.

 

Led by Rep. Ted Lieu, the lawsuit (pdf) filed on Nov. 4 in Washington says a "systemic crisis" has resulted from SpeechNow.org v. FEC, a ruling issued in 2010 by the en banc D.C. Circuit.

 

By voiding the $5,000 contribution limit to political action committees, according to the complaint, SpeechNow "birthed the so-called 'super PAC' and radically transformed American politics as a result."

 

The ruling erupted just two months after Citizens United — the landmark Supreme Court decision that tossed out the ban on campaign-spending limits for corporations.

 

Though the U.S. Supreme Court declined to take up SpeechNow that November, the new lawsuit says the decision relied "entirely on the misapprehension of a single sentence of Citizens United."

 

The crux of Citizens United was that "independent" expenditures, by definition, cannot corrupt.

 

"If true, so SpeechNow reasoned, then contributions to political committees that make only independent expenditures also cannot corrupt or even appear to do so," the complaint states. "But SpeechNow's facile conclusion is flawed. It misconstrues Citizens United, ignores foundational distinctions between expenditures and contributions, and is belied by six years' experience with unlimited and potentially collusive contributions to super PACs."

 

Lieu, a Democratic congressman from California, says the FEC has compounded the error of SpeechNow by failing to act on administrative complaint he filed with the other challengers.

 

Indeed, three sitting commissioners told the New York Times last year that the "agency's enforcement process is paralyzed," according to the complaint.

 

"Whatever the cause or excuse for agency delay, there is every reason to conclude that, unless this court compels the FEC to resolve the administrative complaint within 30 days as the statute contemplates, the agency's inertia and inaction will continue to compound the error of SpeechNow — not only to the detriment of plaintiffs, but more generally to the detriment of the nation's campaign finance system and its capacity to stem corruption and the appearance of corruption," the 21-page complaint continues.

 

In a statement on the lawsuit, the challengers contend that SpeechNow has allowed wealthy donors to use super PACs as vehicles that let them "evade campaign-contribution limits designed to prevent corruption and the appearance of corruption."

 

With 3,000 super PACs operating in the 2016 election cycle, 40 percent of contributions to these groups since April have come from the same 50 sources and their families.

 

As of October, they had raised $1.1 billion and made total expenditures of more than $799 million.

 

By March, super PACs, in conjunction with other political nonprofits, had also spent $34.1 million on House and Senate races. That amounts to 85 percent more than what had been spent at that point in 2012, according to the lawsuit.

 

The other sitting congressman behind the lawsuit are Rep. Walter Jones, a North Carolina Republican, and Sen. Jeff Merkley, an Oregon Democrat.

 

Jones noted in a statement that he has seen the increasingly pervasive role money plays in elections since the Citizens United and SpeechNow.org decisions of 2010.

 

"I see its influence shape policy in Washington to the detriment of the American people all the time," Jones said. "This effort is an important step towards returning the government to the people, and I'm proud to be a part of it".

 

John Howe, a Republican and former member of the Minnesota Senate, joined the complaint as well, along with congressional candidates Zephyr Teachout and Michael Wager.

 

The complaint names 10 PACs registered as expenditure-only committees, or super PACs, that knowingly exceeded the $5,000 contribution limits: "House Majority PAC, Congressional Leadership Fund, Senate Majority PAC, Senate Leadership Fund, American Alliance PAC, Bold Agenda PAC, Defending Main Street SuperPAC Inc., ESAFund, Freedom Partners Action Fund, Inc., and New York Wins PAC."

 

Big-money influence has been a critical obstacle for Teachout, the Democrat vying to represent an upstate region of New York in the U.S. House of Representatives.

 

The New Republic reported over the summer that the campaign of Teachout's Republican opponent, John Faso, is being bankrolled by a Super PAC funded primarily by conservative CEO Robert Mercer and hedge fund billionaire Paul Singer.

 

Teachout made headlines for taking on Faso's secretive backers, challenging them in a video to a debate.

 

The plaintiffs are represented by attorneys Stephen Weisbrod with Weisbrod Matteis & Copley. Other firms involved in the suit are Free Speech for People, the Campaign for Accountability, and Garvey Schubert Barer.

 

Brad Deutsh, an attorney with Garvey Schubert, said in a statement that contribution limits are meaningless if donors can give millions to super PACs.

 

"A donor can only give $2,700 directly to a candidate, but they can give millions of dollars to a super PAC supporting that same candidate," he said. "The FEC should enforce the contribution limits that already exist in the law, but if the FEC refuses, the courts must step in."

 

The FEC declined to comment on pending litigation.

 

To Learn More:

            Rep. Ted Lieu, et al., v. FEC (U.S. District Court for District of Columbia) (pdf)

Super-Wealthy Pour Money into Election Campaigns through Single-Donor Super PACS (by Noel Brinkerhoff, AllGov)

Super PACs Shove Aside Traditional Campaign Financing (by Noel Brinkerhoff and David Wallechinsky, AllGov)

Just 37 Americans Provided More than Half of Super PAC Money from Individuals in 2011 (by Noel Brinkerhoff, AllGov)

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