A bipartisan group of congressional members and candidates is filing a federal suit Friday against the Federal Election Commission, seeking to force the agency to act on a complaint it brought against 10 super PACs in July.
The maneuver is part of a legal strategy aimed at rolling back SpeechNow.org v. FEC, the federal appellate court decision that led to the birth of super PACs, which can accept unlimited donations. Once the FEC takes up the complaint and dismisses it or deadlocks on it — as it is ultimately expected to do — the group plans to file a broader suit against the agency that it hopes will ultimately reach the Supreme Court.
If they succeed, said the plaintiffs' counsel Brad Deutsch, “the consequence is the death of the super PAC.”
The powerhouse legal team working on the case — which includes Laurence Tribe, a professor of constitutional law at Harvard University, and Richard Painter, who was the chief ethics lawyer for former president George W. Bush — faces an uphill fight. Half a dozen federal appellate courts have held that contribution limits cannot be placed on groups doing independent spending.
Supporters of SpeechNow said they were confident the challenge would fail.
"The lawsuit proposes a ridiculous theory and is a publicity stunt," said David Keating, president of the Center for Competitive Politics, who launched the original SpeechNow case. He said the plaintiffs are seeking "to silence those who disagree with them.”
"It shows the real motivation of those behind the case," Keating added. "They want government to limit speech."
The SpeechNow decision, handed down two months after the Supreme Court decided Citizens United v. FEC, arguably had as big of an impact on American politics as its more-famous cousin. The ruling by the U.S. Court of Appeals for the D.C. Circuit allowed wealthy individuals and corporations to give unlimited sums to political action committees that operate independently of candidates and political parties.
That effectively created super PACs, which have quickly gone from exotic add-ons to must-haves in major races. In the 2016 elections, nearly every presidential candidate had a personalized super PAC, flush with millions of dollars from wealthy allies.
The group trying to overturn the decision is arguing that the D.C. appellate court erred in its interpretation of Citizens United, noting that mega-donors now give millions to super PACs that effectively serve as an extension of the official campaigns.
“Times have changed, and a lot of those decisions issued shortly after Citizens United were before we knew what we know now about super PACS and how that system has operated,” said lead attorney Ron Fein, legal director at Free Speech for People, a nonprofit legal advocacy group. “The Supreme Court has never reviewed this question, and there’s good reason to believe that at least one, maybe two, of the justices, even in the Citizens United decision, did not think what they were doing was creating the pathway to super PACs.”
The plaintiffs in the case include Sen. Jeff Merkley (D-Ore.), Reps. Ted Lieu (D-Calif.) and Walter B. Jones (R-N.C.); former state senator John Howe, a Republican from Minnesota; Zephyr Teachout, a Democrat running for the House in New York; and Michael Wager, a Democratic House candidate in Ohio.
This story has been updated.