The thrust of their argument, which they hope to get the Supreme Court to consider: that the lower court erred in its interpretation of a line in the Citizens United decision, handed down two months before SpeechNow.org.
But Keating said he's confident in the legal underpinnings of SpeechNow.org, which he said predate the controversial Citizens United ruling.
"SpeechNow was a slam dunk after Citizens United, but it was a very highly probable even before it," he said.
Keating decided to pursue the case after reading a concurring opinion that Justice Harry Blackmun wrote in the 1981 Supreme Court case California Medical Assn. v. FEC. In it, Blackmun said he believed it was important to maintain contribution limits on traditional PACs that give money directly to candidates because they "pose a perceived threat of actual or potential corruption." But he added that he would not support such limits on "a committee that makes only independent expenditures."
"I remember reading that case and that’s where I got the idea of putting together group like SpeechNow," Keating said. He filed the complaint in February 2008, arguing that the group should not be subject to contribution limits because it did not plan to spend money in conjunction with a candidate or party. In March 2010, the U.S. Court of Appeals agreed.
"Basically, the SpeechNow case said, 'If one person can make unlimited speech, why can’t two of us get together and pool our money and speak?'" said Keating, now president of the Center for Competitive Politics.
It proved to be a popular concept: By the end of 2010, 83 super PACs had formed and spent nearly $63 million on the midterm elections. This cycle, more than 2,300 registered super PACs have already collected $783 million. Many of the biggest in the 2016 elections have been single-candidate super PACs, run by close associates of a candidate and financed by his or her friends and family.
Keating is not comfortable with how closely involved many candidates are to their aligned super PACs, saying some of the behavior "is not a reasonable interpretation of the law."
But for that he blames the Federal Election Commission. "They have yet to write a single rule on SpeechNow," he noted.
Former FEC chairman Bradley Smith, who founded the Center for Competitive Politics, which helped bring the SpeechNow case, agreed that many of the current complaints about super PACs could be dealt with by revising the FEC's coordination rules.
"What they claim is so horrible about SpeechNow and super PACs can actually be addressed much more simply through regulatory process," he said.
Meanwhile, some are skeptical that the SpeechNow challenge will get traction. In a series of tweets Thursday night, veteran Democratic campaign finance lawyer Marc Elias warned that the challengers will not be able to file a suit against the FEC for failing to to enforce campaign finance laws because the agency is following the appellate court's order. "This case won't go that far," he wrote.