Cause Project
by Equal Citizens Foundation
Project Details
The End Super PACs project: Fixing our campaign finance system with a litigation to end super PACs
In Citizens United v. FEC (2010), the Supreme Court held that the First Amendment protected the rights of corporations and unions to spend unlimited amounts of money promoting or opposing political candidates, so long as that spending was independent of the campaigns of those candidates. Three months later, in SpeechNow v. FEC (2010), the DC Circuit held that the reasoning of Citizens United entailed that independent political action committees had a constitutional freedom to accept unlimited contributions. That decision was not appealed to the Supreme Court. It created the super PAC.
Both decisions rest upon a conception of “corruption” that is decidedly modern. The Supreme Court has held that the First Amendment permits the regulation of political speech only if there is a compelling interest in that regulation. Avoiding “corruption” has been held to be a compelling state interest. But by “corruption,” both the DC Circuit and Supreme Court have meant quid pro quo corruption. Because independent expenditures are, by definition, independent, they could not be quid pro quo.
This sense of “corruption” was not the predominant sense at the founding. Instead, much more common was a sense of corruption as in “institutional corruption.” An institution is corrupted, among other ways, if the dependence intended for that institution has been compromised. In this sense, for example, a judiciary is corrupted if judges are dependent upon political favor, rather than upon the law, since the intended dependence of the judiciary is to be “upon the law.”
Our End Super PACs litigation aims to use this founding conception of corruption to appeal to originalist justices on the Supreme Court in an effort to revive the capacity of legislatures to restrict super PACs. Specifically, we will advance litigation that establishes this alternative conception of corruption, and use it to appeal to originalists in an effort to overturn the SpeechNow.
Alaska offers a unique opportunity to achieve this result. Alaska law permits citizens to complain if Alaskan election law has not been enforced. Working with citizens in Alaska, we have filed three citizen complaints challenging the failure of Alaska officials to enforce their anti-super PAC law. And when the Alaska Attorney General defends that decision based on SpeechNow, we want to take that excuse to the United States Supreme Court, and ask the justices — what would the Framers say about super PACs?
Many will be skeptical that conservative justices would rule against (more) money in politics, but we believe there’s no reason an originalist on the Supreme Court should take any different view. Because we believe that any honest reading of the Framers’ views would yield one clear conclusion: super PACs are not required by the First Amendment. If they interpreted the Constitution to give Congress the power to protect against the kind of corruption the Framers were most concerned about, then they would conclude that Congress should have the power to limit super PACs.
The retirement of Justice Anthony Kennedy also bolstered the prospect of this unique opportunity. Justice Kennedy, who was not an originalist, was among the most strident opponents of the government’s ability to place any limits on campaign spending or donations. His theories on campaign finance peaked in his famous — or infamous — opinion in Citizens United. Lower courts soon began to cite Citizens United to issue decisions that have opened the floodgates to nearly unlimited campaign spending.
Justice Kennedy’s Citizens United opinion was distinctly un-originalist — he thought the government’s only interest in preventing corruption of politicians was in preventing outright bribes, but in fact our Framers had a broader understanding of corruption that would allow the government to prohibit certain troubling financial arrangements that render our politicians depend on narrow special interests instead of the broad public. Perhaps a professed originalist justice like Brett Kavanaugh, President Trump’s nominee to replace Justice Kennedy on the Supreme Court, will adopt that understanding and limit Citizens United’s crabbed view of corruption.
Donation Deadline
Deadline Not Specified
Project Website
https://equalcitizens.us/end-super-pacs/ Project Location
1032 15Th St. N.w., Suite 239, Washington,
District of Columbia 20005
United States.