July 22, 2020

Senators Encourage Supreme Court to Take up Challenge to Super PACs

Whitehouse, Leahy, Udall, Blumenthal, Hirono, Van Hollen point to ‘fundamental threat’ posed by unlimited contributions to super PACs; Justices ought to strike down SpeechNow and end shadow campaign finance system, senators argue


Washington, DC – Senators Sheldon Whitehouse (D-RI), Patrick Leahy (D-VT), Tom Udall (D-NM), Richard Blumenthal (D-CT), Mazie Hirono (D-HI), and Chris Van Hollen (D-MD) filed a friend-of-the-court brief today in support of a petition for Supreme Court review of the major campaign finance case Lieu v. Federal Election Commission (FEC).  The senators argue that the Court should take up the challenge to the wrongly decided appeals case SpeechNow.org v. FEC and limit the power of super PACs to corrupt American democracy. 

The lower court’s decision in SpeechNow misapplied the Supreme Court’s decision in Citizens United v. FEC to permit wealthy donors and corporations to contribute unlimited amounts to independent political action committees (PACs), creating “super PACs” and inundating our political system with special interest activity at the expense of free and open democratic discourse, the senators argue. 

The absence of limits on contributions to super PACs opens a world of unregulable threats and promises; it confounds the independence and transparency predicates of Citizens United; it gives a small set of participants disproportionate and undemocratic influence in American politics; it distorts election and policy outcomes; and it causes millions of ordinary Americans justifiably to lose faith in the political process,” the senators write.  “This fundamental threat to American democracy warrants review by the Court to correct the holding in SpeechNow.”

Citing their own experience in American politics, the senators describe how SpeechNow has led to a shadow campaign finance system in which corruption, or the appearance of corruption, is endemic and inevitable.  As a result of SpeechNow, a small number of very wealthy individuals can contribute unlimited amounts of money, or threaten to make those contributions, to “independent” super PACs.  Those threats can apply strong political pressure in secret, distorting elections and the legislative process.  Such a system is not what the Supreme Court imagined in deciding Citizens United.

This is all a rich recipe for corruption,” the senators write.  “Massive donations inherently tend toward corruption.  Covert massive donations—known only to the donor, the candidate, and those facilitating the transaction—exacerbate the risk of corruption.  And private threats and promises of massive donations defy the predicates of ‘transparency’ and ‘independence’ that Citizens United applied to expenditures, presumed to protect against corruption.”

Undermining such important protection against corruption does serious damage to the public’s perception of our election system, the senators note.  Polling shows overwhelming majorities support stronger limits on the amounts individuals and organizations can contribute in elections. 

Given the stakes often at play in Congress, there is no natural upper bound on political contributions by special interests and no limit to the force of their corrupting influence,” the senators continue.  “Hundred-million-dollar influence operations can yield hundred-billion-dollar political returns.  It should be no surprise that there is a public crisis of confidence in our democracy.  The disenchanted voters are not wrong.”

The senators argue in favor of the challengers to SpeechNow—Representative Ted Lieu (D-CA), the late Representative Walter Jones (R-NC), Senator Jeff Merkley (D-OR), and a bipartisan group of state candidates and officials.  The Supreme Court is expected to decide on whether to take the case in over the coming months.

Read the senators’ full brief here.




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