A bipartisan group of lawmakers and congressional candidates has filed a complaint with the Federal Election Commission seeking to prevent big donors from having an outsized influence on the electoral process.
The 34-page complaint, filed by “Free Speech for People” on behalf of two sitting House members, one senator, and three candidates who are challenging congressional incumbents, comes against 10 “super PACs,” including the Republican Congressional Leadership Fund and the Democratic House Majority PAC. The PACs are able to accept unlimited funds and make unlimited expenditures on behalf of candidates.
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The activity has been legal since 2010, after two major cases changed campaign finance law. The first was the Supreme Court’s Citizens United v. FEC, which allowed nonprofits and other political action committees to make unlimited expenditures to influence elections. The second, SpeechNow v. FEC, handed down by the D.C. Circuit Court of Appeals two months later, allowed individuals and corporations to make unlimited contributions to those PACs, and was based partially on the Supreme Court’s decision in Citizens United.
While Citizens United has long represented a target for Democrats, it’s the SpeechNow case that complainants are seeking to overturn. The court erred in its interpretation of the law, they argue, to the detriment of the electoral process.
“I think most people understand that money influences politics to a degree that we need to limit it, and we need to address it,” said John Howe, a former Minnesota state senator now running for Congress. “We’re not challenging anybody’s free speech. If you want to spend a billion dollars in your name and spend it, that’s fine. But when you give it to a third party organization, and we don’t know whose money it is, and it’s used in such a way that it corrupts the political system, we need to address it.”
Some additional complainants in the case include Oregon Sen. Jeff Merkley and California Rep. Ted Lieu on the Democratic side, and North Carolina Rep. Walter Jones on the Republican side. If the FEC turns down their case, the group plans to file suit in federal court, an action that could enable appeals leading up to the Supreme Court.
Some campaign finance attorneys say the group should prepare the paperwork now because the FEC is unlikely to take action. What’s more, they say the complaint itself may even violate campaign finance law.
On the first point, experts point out, complaints filed with the FEC need to state an alleged violation of the law, which FEC guidelines describe as “clearly [reciting] the facts that show specific violations under the Commission’s jurisdiction.”
However, the complaint does not allege that a violation of law took place and acknowledges that the right to make unlimited contributions is an existing legal precedent. As a result, even some Democratic experts have looked at the case with skepticism.
“I support overturning Citizens United,” Democratic campaign finance attorney Marc Elias, who represents the Senate Majority PAC and House Majority PAC, two respondents listed in the complaint, said in a July 7 comment on Twitter. “This is just a crazy way to try to do it … it starts with filing a frivolous FEC [complaint] that fails to allege illegal conduct by respondents.”
“If this filed in court, it would be potentially sanctionable,” Elias added. “Once this is dismissed — and it will be — then what? A lawsuit against the FEC for failure to act?”
Andrew Woodson, an election law partner at Washington, D.C. law firm Wiley Rein, echoed Elias’ assessment in comments to the Washington Examiner. “Dragging potentially dozens of individuals and entities through the costly enforcement process for exercising their judicially and administratively-recognized constitutional rights is not an appropriate way to challenge legal precedent,” Woodson said. “This is the type of complaint that should be dismissed by commission lawyers at the threshold,” before it reaches commissioners.
The second problem for complainants is the legal work associated with the filing, which is being provided at no cost by Free Speech for People, a group that advocates for campaign finance reform. By law, candidates are prohibited from receiving most forms of pro bono legal counsel, which is generally considered a contribution to their campaigns.
“The provision of free legal services to federal campaigns under these circumstances raises serious questions about whether these candidates have themselves now violated the law,” said a veteran campaign finance attorney who did not wish to be named.
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Experts note that there are some nuances to the law: Commission rules allow pro bono services to be used “if such services are solely to ensure compliance” with campaign finance law. But it remains an open question for complainants in the case, and it is not an unprecedented issue. Democratic Maryland Rep. Chris Van Hollen has been defending against similar complaints for several years, which have been centered on his use of pro bono services to file his own suits against the FEC.
Yet in spite of the legal hurdles, Howe said he stands by the basic principles undergirding the issue of big money in politics. “There most certainly can be corruption, and there is. I don’t think people realize the amount of influence held by super PACs, which is outrageous.”
“I think we need to get back to average citizens having a voice … That’s why this complaint is so important,” he said.
