Thirteen years ago, a lower federal court gave us SuperPACs—a legal innovation that has created immeasurable harm to our democracy. Two months after the Supreme Court decided Citizens United v. FEC (2010), the D.C. Circuit decided SpeechNow v. FEC (2010). Citizens United had held that political expenditures by a corporation (and union) uncoordinated with a candidate could not be limited because of the First Amendment. SpeechNow held that if expenditures by an independent PAC could not be limited, then contributions to an independent PAC also could not be limited.
That conclusion embeds an obvious, logical mistake. The court held, in essence, that a contribution to an independent PAC could not involve “quid pro quo” (this-for-that) corruption. Here’s the paragraph precisely:
But this claim —that “contributions to groups that make only independent expenditures also cannot corrupt” — is obviously logically wrong. Not only “can” a contribution to an independent PAC involve “quid pro quo corruption,” the United States government has actually prosecuted a United States Senator for that pattern of criminality exactly. In United States v. Menendez (2015), the government alleged (but did not prove) that a donor made a deal with a Senator to give money to a SuperPAC supporting the Senator if the Senator would do something that would benefit the donor. That deal is a classic “quid pro quo.” That deal involved “contributions to groups that make only independent expenditures.” That contribution, therefore, can corrupt. And the conclusion that such contributions “cannot corrupt” is obviously, logically mistaken.
Someday, I trust, legal historians will explain precisely why 13 years after this obvious logical mistake, the conclusion of the court making that mistake still rules American law. It is astonishing — and embarrassing, for us lawyers at least. I know that when I started working on the project of reversing SpeechNow, my focus was elsewhere — not on whether contributions to SuperPACs could involve quid-pro-quo corruption, but on the question why Congress was limited to quid-pro-quo corruption alone. I thought it obvious that no consistent originalist could limit Congress to remedying quid-pro-quo corruption alone. I therefore have worked hard to get a case before the Supreme Court to give the originalists a chance to apply their emerging originalist theory of the First Amendment to campaign finance regulations. Here, for example, is Justice Thomas, just last month, describing the method he believes originalists should adopt when applying the First Amendment:
That criticism of New York Times v. Sullivan (1964) applies as well to Buckley v. Valeo (1976): Buckley, too, refused to apply “the First Amendment as it was understood at the time of the Founding,” and instead “fashioned its own federal rule by balancing the competing values at stake.” If Thomas’ test were applied to campaign finance rules, then Congress and the states could clearly regulate corruption beyond “quid pro quo.”
Most are skeptical of the idea that conservatives on the Supreme Court would apply their principles consistently. I get that. Last February, Ron Fein (on behalf of petitioners represented by Free Speech for People) and I (on behalf of petitioners represented by EqualCitizens.US) asked the Massachusetts Supreme Judicial Court to reverse the MA Attorney General’s decision blocking a ballot initiative to ban SuperPACs in Massachusetts. Under Massachusetts law, the question was whether it was “conceivable” that the initiative did not violate “free speech.” My part of the argument was focused on the originalists. Thus for me, that test translated to the question of whether it was “conceivable” that the originalists on the Supreme Court would apply their principles consistently. One Justice picked up on the point: As she commented, “I hope you are right that it is not an unreasonable belief.” The bench then openly laughed at the idea that the conservatives would be consistent. (You can watch the argument here. You can see the laugh at 15:11.)
But Ron Fein’s argument — building on the work of Larry Tribe and my former law professor, Al Alschuler—was much simpler, and much more compelling. Because he, brilliantly, demonstrated the logical error in SpeechNow. (You can watch his argument here, beginning at about 16:10.) Applying Chief Justice Roberts’ test explicitly—which permits the regulation of contributions if, but only if, they create the risk of quid-pro-quo corruption—Fein showed how contributions to SuperPACs could create that risk. His argument didn’t require mapping uncharted originalist First Amendment doctrine; his argument simply applied the Supreme Court’s existing test to demonstrate why lower courts were simply wrong to conclude that “contributions to groups that make only independent expenditures … cannot corrupt.”
If you watch Fein’s argument carefully, it seems clear that the Court understood Fein’s point. But for the worst possible reasons, the SJC ducked the question completely. Thus, 13 years after the D.C. Circuit made its mistake, we still have no court with the courage to call out that mistake. And without some court exercising that courage, we will not get a case to the Supreme Court to give them the chance to reverse SpeechNow and to uphold the power of states and Congress to limit the quid-pro-quo corruption in contributions to SuperPACs.
This is, again, an embarrassing commentary on American law. Because I’m certain that to this day, the vast majority of American lawyers who know what the word “SuperPAC” means also believe that the First Amendment, as Citizens United interpreted it, protects SuperPACs. Which is to say that the vast majority of lawyers who know what the word “SuperPAC” means also believe 2+2=5.
It’s time to try another strategy.
If this question is settled to most lawyers, we have to find a way to shake it up.
We have to find a way to make it obvious that SuperPACs can be regulated under the First Amendment.
We have to find a way to make it shameful for a lawyer to utter the obviously erroneous statement that “contributions to groups that make only independent expenditures also cannot corrupt.”
So we (EqualCitizens.US) have launched a crowdfunding campaign to fund a prize large enough ($50k) to inspire a wide range of creators to produce short and compelling videos that make this point clear.
I produced an insanely long video that works through Free Speech for People’s argument step-by-step. That video is obviously too long for the Internet (~12 minutes!). But the competition would ask creators to use that long video as a stem file, and to make a much more compelling (which means first, much shorter) version of that argument so that anyone — including lawyers — can see, in 3 minutes or less, exactly why the conventional wisdom about SuperPACs is just wrong.
If we can raise $50k as a minimum first prize, then we’ll launch the competition. We’ll keep the funding campaign open to allow the prize to grow (and potentially multiply the number of prizes). If we don’t raise the $50k, we’ll return any pledge made.
I want to hit our $50k goal within a week. If we do, that will give creators about a month to make their short, compelling videos making our arguments better. (Deadline will be August 15).
And then if we get a crop of great and compelling videos, that might well convince the Massachusetts Attorney General, Andrea Campbell (@MassAGO) (the first AG elected with the support of a SuperPAC, but not the AG who rejected our initiative originally) to rethink the erroneous conclusion of the AG’s office that SuperPACs cannot be regulated.
If she does, we can get our initiative on the MA ballot for the 2024 election. And if we do that, it will pass. And it will be challenged.
And if lawyers can learn, then we’ll get the case to the Supreme Court, where I predict Chief Justice Roberts will write an opinion upholding the power of Congress and the states to limit contributions to SuperPACs. And I predict as well that there will be at least one originalist who will join by affirming that a principled originalist should agree that congress and the states can regulate more than quid pro quo corruption.
So help us with this first step: Pledge to the crowdfunding campaign to raise the prize for the best remake of my argument remaking Free Speech For People’s argument. (You can join a list to be kept informed about the campaign without contributing here.)
If we raise the $50k, then enter the contest.
Regardless of whether you can take either step, please share the campaign with your 10,000 best friends.
And if you can help us run the competition or the campaign (we’re still looking for a manager, and we need tons of other help), please email adam at equalcitizens.us.
It is a dark time to speak of hope. I get that. But I genuinely believe this fight against SuperPACs — an entity that is responsible for much of the extremism in the federal courts and in Congress—is one we will eventually win. Because we are not asking the conservatives to change their mind about money in politics. We’re asking them to apply their own test, consistently and fairly.
I understand it if that idea makes you laugh. Don’t let that laugh distract you from a critical fight that we could well win.
Here’s the step-by-step “stem” file that creators would work from:
Here’s a terrible (but much shorter — ~3min!) backgrounder to explain the legal context:
And here’s a link to the website for the campaign:
Finally, if you click this link, a tweet will open in Twitter that you can edit and then send to support the campaign. Please do!
