UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
REPRESENTATIVE TED LIEU, et al.,
Plaintiffs, Civ. No. 16-2201 (EGS)
v.
FEDERAL ELECTION COMMISSION,
Defendant.
MEMORANDUM OPINION
This case involves the constitutionality of the Federal
Election Campaign Act’s (“FECA”) limits on contributions to
political action committees that make only independent
expenditures. The Court of Appeals for the District of Columbia
Circuit (“D.C. Circuit”) has held that contributions to such
independent expenditure-only political action committees “cannot
corrupt or create the appearance of corruption” and therefore
limits on contributions to these groups are unconstitutional.
SpeechNow.org v. FEC, 599 F.3d 686, 694 (D.C. Cir. 2010)(en
banc). The upshot of this holding is that certain political
action committees, commonly known as “Super PACs” can “receive
unlimited amounts of money from both individuals and
corporations” and “engage in unlimited electioneering
communications, so long as their activities are not made ‘in
cooperation, consultation, or concert, with, or at the request
or suggestion of’ a candidate, his or her authorized political committee, or a national, State, or local committee of a
political party.” Stop This Insanity, Inc. Employee Leadership
Fund v. FEC, 902 F. Supp. 2d 23, 37 (D.D.C. 2012)(citation
omitted). It is undisputed that this is the law of the Circuit.
Notwithstanding the D.C. Circuit’s ruling in SpeechNow,
Plaintiffs Representative Ted Lieu; Representative Walter Jones;
Senator Jeff Merkley, State Senator (ret.); John Howe; Zephyr
Teachout; and Michael Wager (collectively, “Plaintiffs”) brought
an administrative complaint against several Super PACs alleging
violations of FECA when the Super PACs knowingly accepted
contributions in excess of monetary limits set by FECA. The
Federal Election Commission (“FEC” or “Commission”) disagreed
explaining that under SpeechNow the Super PACs actions were
lawful. Accordingly, the FEC dismissed the administrative
complaint.
Plaintiffs bring this action alleging the FEC acted
“contrary to law” when it dismissed the administrative complaint
against the Super PACs because the FEC relied on SpeechNow--an
allegedly unlawful judicial ruling. Pending before the Court is
FEC’s motion to dismiss plaintiffs’ complaint for failure to
state a claim. Plaintiffs have the daunting task of persuading
this Court to rule inconsistently with the D.C. Circuit’s en
banc opinion in SpeechNow. This Court cannot do so, therefore
defendant’s motion to dismiss is GRANTED.
2 I. Background
Because the claims in this case involve several provisions
of FECA, and the D.C. Circuit’s interpretation of those
provisions, the Court begins with an explanation of the statute
and relevant case law.
A. FECA and SpeechNow
FECA was enacted to “limit spending in federal election
campaigns and to eliminate the actual or perceived pernicious
influence over candidates for elective office that wealthy
individuals or corporations could achieve by financing the
‘political warchests’ of those candidates.” Orloski v. FEC, 795
F.2d 156, 163 (D.C. Cir. 1986)(citing Buckley v. Valeo, 424 U.S.
1, 25–26 (1976)). To that end, there are several provisions in
FECA that limit the amount of money a person can contribute to a
federal campaign. These limits often depend on who or where the
contribution is coming from, and the amount of the contribution.
Relevant to this case are the limits on contributions made
to political action committees. 1 FECA defines a “political
committee” as “any committee, club, association, or other group
of persons” that receives “contributions” or makes
1 The term “political action committee or ‘PAC’ . . . normally refers to organizations that corporations or trade unions might establish for the purpose of making contributions or expenditures that [FECA] would otherwise prohibit.” FEC v. Atkins, 524 U.S. 11, 15 (1998)(citing 2 U.S.C. §§ 431(4)(B), 411b). 3 “expenditures” “for the purpose of influencing any election for
Federal Office” “aggregating in excess of $1,000 during a
calendar year.” 52 U.S.C. § 30101(4)(A), (8)(A)(i),(9)(A)(i).
This definition has been further tailored by the Supreme Court
to “only encompass organizations that are under the control of a
candidate or the major purpose of which is the nomination or
election of a candidate.” Buckley v. Valeo, 424 U.S. 1, 79
(1976). Political action committees fall within the category of
political committees as defined by the Act.
FECA sets several limitations on the contributions
political committees may receive depending on the type of entity
that receives the contribution. A political committee that is
not authorized by a candidate or established by a national or
state political party may not knowingly accept any contribution
in excess of $5,000 per year from an individual. 52 U.S.C.
§ 30116(f). And, of course, an individual shall not contribute
more than $5,000 per year to this type of political committee.
Id. § 30116(a)(1)(C).
The $5,000 limit on contributions to political committees
does not apply, however, to political committees that solely
engage in independent expenditures. See SpeechNow, 599 F.3d at
694–95. Independent expenditures are defined by FECA as
expenditures “that expressly advocate[] the election or
defeat of a clearly identified candidate” and are “not made in
4 concert or cooperation with or at the request or suggestion of
such candidate, the candidate’s authorized political committee,
or their agents, or a political party committee or its agents.”
52 U.S.C. § 30101(17).
The inability to put limitations on contributions to
independent expenditure-only political committees has led to
“the genesis of so-called ‘Super PACs.’” Stop this Insanity, 902
F. Supp. 2d at 37. Super PACS were born from the union of the
rulings in two First Amendment campaign finance cases. In the
first case, Citizens United v. FEC, the Supreme Court
“conclude[d] that independent expenditures, including those made
by corporations, do not give rise to corruption or the
appearance of corruption.” 558 U.S. 310, 357 (2010). Therefore,
the Court held, the government did not have a sufficient anti-
corruption interest in restricting corporations from engaging in
political speech funded from the corporation’s general treasury
if that speech was in the form of an independent expenditure.
Id. at 358.
In the second case, SpeechNow, the D.C. Circuit held that
if under Citizens United there was no anti-corruption interest
in limiting independent expenditures then there could not be an
anti-corruption interest in regulating contributions to
independent expenditure-only political action committees. 599
F.3d at 694–95. The D.C. Circuit acknowledged that the only
5 interest recognized by the Supreme Court as sufficiently
important to outweigh First Amendment interests implicated by
contributions for political speech was the interest of
“preventing corruption or the appearance of corruption.”
SpeechNow, 599 F.3d at 692 (citations omitted). Applying the
then-new precedent of Citizens United, the D.C. Circuit reasoned
that if the Supreme Court ruled that limits on independent
expenditures were unconstitutional, it necessarily follows that
limits on contributions to political committees that engaged
solely in independent expenditures are also unconstitutional.
Id. This is because, like the independent expenditures in
Citizens United, “contributions to groups that make only
independent expenditures also cannot corrupt or create the
appearance of corruption.” Id. at 694. In other words, the
government “has no anti-corruption interest in limiting
contributions to an independent expenditure group” and
therefore, the D.C. Circuit held, any limits on such
contributions are unconstitutional. Id. at 695.
Enter Super PACs. Because these political action committees
make solely independent expenditures, they are “permitted to
receive unlimited amounts of money from both individuals and
corporations.” Stop This Insanity, 902 F. Supp. 2d at 37. This
allows for an “unlimited [amount of] money to flow into the
electoral process for express advocacy” for particular
6 candidates so long as the expenditures are not coordinated with
that candidate. Id. at 38.
In light of Citizens United and SpeechNow, the FEC issued
an advisory opinion explaining the SpeechNow ruling and its
effects on the regulation of political action committees. FEC
Advisory Op. 2010-11 (Commonsense Ten), 2010 WL 3184269 (July
22, 2010). The advisory opinion explained that the FEC’s
understanding was that it “necessarily follows” from Citizens
United and SpeechNow “that there is no basis to limit the amount
of contributions to” an independent expenditure-only political
committee “from individuals, political committees, corporations
and labor organizations,” which are covered by 52 U.S.C. §
30116(a)(1)(C). Id. at *2. The advisory opinion also triggered
FECA’s safe harbor for “any person involved in any specific
transaction or activity which is indistinguishable in all its
material aspects” from the activity described in the opinion. 52
U.S.C. § 30108(c)(1)(B). Additionally, anyone who relies on a
finding in an advisory opinion and does so in good faith “shall
not, as a result of any such act, be subject to any sanction
provided” by FECA. Id. § 30108(c)(2). Since issuing the advisory
opinion, the Commission has not enforced the limits in 52 U.S.C.
§ 30116(a)(1)(C) when contributions are given to groups that
make only independent expenditures. Def.’s Mot. to Dismiss, ECF
7 No. 39 at 11. 2
FECA allows any person to file an administrative complaint
with the FEC alleging a violation of the statute. 52 U.S.C.
§ 30109(a)(1); see also 11 C.F.R. § 111.4. After reviewing the
complaint, and relevant submissions made by the administrative
respondents, the FEC must determine whether there is “reason to
believe” that FECA has been violated. 52 U.S.C. § 30109(a)(2).
If the Commission dismisses the complaint, FECA allows “[a]ny
party aggrieved” by the dismissal to file suit to obtain
judicial review. 3 52 U.S.C. § 30109(a)(8)(A). If the reviewing
court concludes that the Commission’s dismissal is “contrary to
law,” the court can “direct the Commission to conform with
[that] declaration within 30 days.” Id. § 30109(a)(8)(C).
B. Procedural History
Plaintiffs filed an administrative complaint against ten
political action committees, all Super PACs, alleging that they
knowingly accepted contributions in excess of the $5,000 per
person per year limit set by FECA. See Am. Compl. ECF No. 36 ¶
79 (citing 52 U.S.C. § 30116(a)(1)(C) and (f); 11 C.F.R. §§
110.1(d) and (n)). The complaint also cited over 39 specific
2 When citing electronic filings throughout this opinion, the Court cites to the ECF header page number, not the page number of the filed document. 3 All such lawsuits must be filed in this district. Id.
(providing that aggrieved parties “may file a petition with the United States District Court for the District of Columbia”). 8 contributions to the Super PACs from over two-dozen contributors
that were alleged to violate FECA’s contribution limits. 4 Joint
Appendix (J.A.), ECF No. 45 at 23–30; Id. ¶¶ 41–78.
In their administrative complaint, Plaintiffs recognized
that the FEC in its Advisory Opinion had declared its intent to
follow SpeechNow’s holding that contribution limits as applied
to contributions to independent expenditure-only political
committees are unconstitutional. J.A. at 9. Plaintiffs, however,
reminded the FEC that they were not bound to the SpeechNow
decision and could “still enforce FECA’s contribution limits in
cases brought by or against other parties outside the D.C.
Circuit.” J.A. at 10. Another way around SpeechNow, argued
plaintiffs, was for the FEC to refuse to acquiesce to the
SpeechNow ruling even in the D.C. Circuit “as long as the agency
is ‘embarked on a rational litigation program designed to secure
a reasonably prompt national resolution of the question in
dispute.’” Id. (citing Samuel Estreicher & Richard L. Revesz,
The Uneasy Case Against Intracircuit Nonacquiescence, 99 Yale
L.J. 831, 832 (1990)). Therefore, plaintiffs invited the FEC “to
reconsider, in light of later experience, its decision to
acquiesce to SpeechNow.” Id.
4 For example, the Freedom Partners Action Fund, Inc. was alleged to have received contributions from four individuals, the Charles G. Koch 1997 trust, and the Mountaire Corporation of Little Rock, of over $13,000,000,000 total. 9 The FEC declined the invitation. The Commission voted
unanimously to find no reason to believe that the administrative
respondents, (i.e., the Super PACs), had violated FECA. J.A. at
213–14. The Commission acknowledged plaintiffs’ factual
allegations and plaintiffs’ arguments that SpeechNow was wrongly
decided, but found that “the D.C. Circuit’s decision in
SpeechNow and the Commission’s [advisory opinion] plainly permit
the contributions described in the [c]omplaint, and [plaintiffs]
do not suggest otherwise.” Id. at 208. In light of plaintiffs’
concession that “SpeechNow and [the advisory opinion] permit the
conduct described in the [c]omplaint” the Commission ruled that
it would be inconsistent to find that there was a “reason to
believe that respondents violated the law.” Id. at 210.
The Commission also noted that Super PACs were entitled to
rely on the advisory opinion in which the Commission adopted the
holding in SpeechNow. J.A. at 208. The Commission explained that
individuals may rely on an advisory opinion as long as the
person is “involved in the specific transaction or activity with
respect to which such advisory opinion is rendered” or if the
person is involved in a specific transaction or activity “which
is indistinguishable in all its material aspects from the
transaction or activity with respect to which such advisory
opinion is rendered.” Id. (citing 52 U.S.C. §
30108(c)(1)(A),(B)). The Commission further noted that FECA and
10 the Commission’s regulation prohibit the Commission from
sanctioning any person who acts in good-faith reliance on an
advisory opinion. Id. (citing 52 U.S.C. § 30108(c)(2)).
The Commission also explicitly addressed its decision to
acquiesce to SpeechNow. The Commission began by explaining that
the doctrine of nonacquiesence “refers to an agency’s conscious
decision to disregard the law of one or more circuits to
generate a circuit split that will result in judicial finality
through Supreme Court review.” Id. at 210 (citation omitted).
The Commission reasoned that acquiescence therefore “assumes
that the law forming the basis for the obligation to acquiesce
remains in flux.” Id. (citing Johnson v. U.S.R.R. Ret. Bd., 969
F.2d 1082, 1092 (D.C. Cir. 1992)). The Commission explained that
because “seven federal courts of appeals” have addressed the
constitutionality of imposing limits on contributions to Super
PACs and have all ruled that such limits are unconstitutional,
“there is simply no basis to conclude that the law remains
unsettled in a way that would begin to justify Commission
nonacquiescence . . . even if the Commission had not already
adopted the holding of SpeechNow in [the advisory opinion].” Id.
at 210–11. Accordingly, the Commission dismissed the complaint.
Plaintiffs sought review of the Commission’s decision by
filing this law suit. In their amended complaint, plaintiffs
allege that because the FEC’s dismissal of the administrative
11 complaint “rested on legally erroneous conclusions about the
constitutionality of [FECA]” the dismissal was “’contrary to
law’ under 52 U.S.C. § 3019(a)(8)(C).” See Am. Compl., ECF No.
36 ¶¶ 85–88. 5 Defendant’s moved to dismiss the complaint for
failure to state a claim. See Def.’s Mot. to Dismiss, ECF No.
39. Plaintiffs filed their opposition to the motion to dismiss
and defendants have filed a reply. This case is now ripe for
adjudication.
II. Legal Standard
The FEC has moved to dismiss plaintiffs’ amended complaint
for failure to state a claim under Federal Rule of Civil
Procedure 12(b)(6). However, because this case requires the
Court to review an agency’s final action, the traditional Rule
12(b)(6) standard of review does not apply. Marshall Cnty.
Health Care Auth. v. Shalala, 988 F.2d 1221, 1226 (D.C. Cir.
1993). Rather, when agency action is challenged, “[t]he entire
case on review is a question of law, and only a question of law.
And because a court can fully resolve any purely legal question
on a motion to dismiss, there is no inherent barrier to reaching
5 Plaintiffs also alleged a violation of the Administrative Procedure Act, 5 U.S.C. § 706(2), in Count II of their Amended Complaint, but have since dropped that claim. See Pls.’ Opp’n., ECF No. 42 at 13 n.1 (“Plaintiffs do not oppose dismissal of Count II, alleging that the FEC’S dismissal of plaintiffs’ complaint violated the Administrative Procedure Act.”). Accordingly, Count II of the complaint is DISMISSED. 12 the merits at the 12(b)(6) stage.” Id. Accordingly, in reviewing
agency action, “the district judge sits as an appellate
tribunal.” Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1083
(D.C. Cir. 2001).
A party challenging an FEC dismissal decision under FECA’s
judicial review provision, 52 U.S.C. § 30109(a)(8)(A), is
entitled to relief if the dismissal decision is “contrary to
law.” Orloski v. FEC, 795 F.2d 156, 161 (D.C. Cir. 1986). “The
FEC's decision is ‘contrary to law’ if (1) the FEC dismissed the
complaint as a result of an impermissible interpretation of the
Act, . . . or (2) if the FEC's dismissal of the complaint, under
a permissible interpretation of the statute, was arbitrary or
capricious, or an abuse of discretion.” Id. (citations omitted).
III. Analysis
The Court begins by addressing the threshold issue of the
appropriate standard of review for the FEC’s decision to dismiss
a plaintiffs’ administrative complaint when that dismissal is
based on an interpretation of judicial precedent. The Court then
turns to the merits and discusses whether the FEC’s decision was
“contrary to law” under FECA.
A. Proper Standard of Review under FECA
The parties agree that the standard of review for a
Commission’s dismissal of an administrative complaint is whether
the dismissal is “contrary to law” under FECA. 52 U.S.C.
13 § 30109(a)(8)(C); see Def.’s Mot. to Dismiss, ECF No. 39 at 17;
Pls.’ Opp’n, ECF No. 42 at 14. The parties similarly agree that
courts need not give binding deference to an administrative
agency’s interpretation of judicial precedent or the
Constitution. Def.’s Mot. to Dismiss, ECF No. 39 at 17; Pls.’
Opp’n, ECF No. 42 at 14. Where the parties part ways, however,
is on the question of whether the “contrary to law” standard
under FECA requires the Court to give any deference to the
Commission’s enforcement decisions, even if the deference is not
conclusive.
Plaintiffs argue that review in this case should be de
novo. Pls.’ Opp’n., ECF No. 42 at 15. Plaintiffs acknowledge
that in the typical case in which the FEC is interpreting a
statute that it administers the Court is required to defer to
the agency’s interpretation. Id. at 14 (citing Chevron, U.S.A.,
Inc. v. Nat. Res. Def. Council, 467 U.S. 837, 843-44 (1984)).
Plaintiffs further acknowledge that a Court must defer to an
agency’s dismissal which rests on a factual determination as
long as that determination is supported by substantial evidence.
Id. (citing Hagelin v. FEC, 411 F.3d 237, 242-43 (D.C. Cir.
2005)). Plaintiffs argue, however, that neither circumstance
applies to this case because the FEC’s dismissal was based on
its interpretation of SpeechNow, and courts need not defer to an
agency’s interpretation of judicial precedent. Id.
14 The FEC argues that the Court should defer to the dismissal
decision. Def.’s Mot. to Dismiss, ECF No. 39 at 18. The FEC
recognizes that “courts are not obligated to give binding
deference to an agency’s interpretation of judicial precedent or
the Constitution.” Id. at 18 (citing Univ. of Great Falls v.
NLRB, 278 F.3d 1335, 1341 (D.C. Cir. 2002)). The FEC argues,
however, that in the context of a decision to not enforce FECA,
an agency engages in a complicated balance of factors
particularly in the agency’s expertise including whether the
agency is likely to succeed if it acts and whether the
enforcement action best fits the agency’s overall policy goals.
Id. (citing Heckler v. Cheney, 470 U.S. 821, 831 (1985)).
Defendants argue that because there are discretionary factors
involved in a decision about whether to bring an enforcement
action, the Court should defer to the agency’s decision
notwithstanding the fact that the decision turned on the
interpretation of judicial precedent. Id.
The Court is persuaded that plaintiffs have the better
argument. This is not the typical case of administrative review:
the FEC’s decision to dismiss the complaint was based
exclusively on its interpretation of the D.C. Circuit’s opinion
in SpeechNow. The precedent in this Circuit is clear that
“courts need not, and should not, defer to agency
interpretations of opinions written by courts.” Citizens for
15 Responsible Ethics in Washington v. FEC, 209 F. Supp. 3d 77, 87
(D.D.C. 2016)(collecting cases). This principle is “especially
true where, as here, . . . the . . . precedent is based on
constitutional concerns, which is an area of presumed judicial
competence.’” Akins v. FEC, 101 F.3d 731, 740 (D.C. Cir. 1996),
vacated on other grounds, 524 U.S. 11 (1998).
The FEC invokes Heckler v. Cheney, but that case is
inapposite. 470 U.S. 821, 831 (1985). Although Heckler does
stand for the proposition that there is a presumption that
agency decisions not to enforce are unreviewable, FECA’s express
provision for the judicial review of FEC dismissal decisions
rebuts that presumption. See FEC v. Akins, 524 U.S. 11, 26
(1998) (“In Heckler, this Court noted that agency enforcement
decisions have traditionally been committed to agency
discretion, and concluded that Congress did not intend to alter
that tradition in enacting the APA . . . We deal here with a
statute [FECA] that explicitly indicates the
contrary.”)(internal quotation marks omitted). Moreover, here,
the dismissal decision was not rooted in a judgment call such as
exercising prosecutorial discretion or policy-based
justifications, but rather an interpretation of judicial
precedent. In other words, the decision was not based on
discretionary factors that would require the Court to defer to
the judgment and expertise of the agency. Accordingly, the Court
16 will not afford deference to the FEC's interpretation of
judicial precedent defining the protections of the First
Amendment as it relates to the issues in this case.
B. Review of the FEC’s Dismissal Decision
Plaintiffs argue that the FEC acted contrary to law in its
interpretation of SpeechNow because its decision to dismiss the
administrative complaint rested on a judicial ruling that was
contrary to law. Pls.’ Opp’n., ECF No. 42 at 17. Plaintiffs
concede that the D.C. Circuit’s ruling in SpeechNow “voided the
long-established statutory limits for contributions to any
political committee that restricts its spending to independent
expenditures.” Am. Compl., ECF No. 36 ¶ 2 (emphasis in
original). However, plaintiffs argue that SpeechNow does not
stop the FEC from declaring the Super PACs’ actions as unlawful.
Pls.’ Opp’n., ECF No. 42 at 19.
In SpeechNow, the D.C. Circuit sitting en banc determined
that FECA limits on contributions could not be constitutionally
applied to independent expenditure-only political action
committees. 599 F.3d at 694–96. The D.C. Circuit began by
recognizing that “although contribution limits do encroach upon
First Amendment interests, they do not encroach upon First
Amendment interests to as great a degree as expenditure limits.”
Id. at 692. The Court explained that expenditures and
contributions are treated differently because, “in ‘contrast
17 with a limitation upon expenditures for political expression, a
limitation upon the amount that any one person or group may
contribute to a candidate or political committee entails only a
marginal restriction upon the contributor's ability to engage in
free communication.’” Id. (quoting Buckley, 424 U.S. at 20–21).
The D.C. Circuit held that although the standard for
restrictions on contributions is less stringent than the
standard for expenditures, the Act’s contribution limit was
unconstitutional under either standard because the government
has no valid “interest in limiting contributions to independent
expenditure-only organizations.” Id. at 696. The Court explained
that the only interest recognized by the Supreme Court as
sufficiently important to outweigh the First Amendment interests
implicated by contributions for political speech is the interest
in “preventing corruption or the appearance of corruption.” Id.
(citations omitted). However, in light of the Supreme Court’s
ruling in Citizens United that independent expenditures could
not corrupt or create the appearance of corruption, the D.C.
Circuit held that it “must conclude” that “the government has no
anti-corruption interest in limiting contributions to an
independent expenditure group.” Id. at 695. Since the government
had zero interest in limiting contributions to groups that make
only independent expenditures, the D.C. Circuit reasoned that
the implicated First Amendment interests outweighed the
18 government’s non-existent interests. Id. As the D.C. Circuit put
it, “something . . . outweighs nothing every time.” Id.
(citation omitted).
Plaintiffs point out several alleged flaws in the D.C.
Circuit’s decision. Plaintiffs argue that SpeechNow: (1) failed
to appreciate the distinction between contributions and
expenditures; (2) rested on a logical fallacy that if
expenditures cannot corrupt then contributions cannot corrupt
either; (3) failed to appreciate a regulatory interest in
limiting contributions; (4) misinterpreted the holding in
Citizens United; and (5) developments since SpeechNow require
its reconsideration. Pls.’ Opp’n, ECF No. 42 at 23–38; see also
id. at 26 (“The bottom line of the SpeechNow opinion--that
contributions to super PACs cannot corrupt--is plainly wrong.”).
Plaintiffs’ acknowledge that the D.C. Circuit’s
interpretation of Citizens United in SpeechNow binds this Court
unless SpeechNow has been overruled by either the D.C. Circuit
sitting en banc, or the Supreme Court. Pls.’ Opp’n, ECF No. 42
at 23. There is no D.C. Circuit case that purports to overrule
SpeechNow. The only Supreme Court case the Plaintiffs cite that
postdates SpeechNow and therefore could have possibly overruled
it is McCutcheon v. FEC, 572 U.S. 185 (2014)(plurality opinion).
In McCutcheon, a Supreme Court plurality held that an aggregate
limit on the amount an individual can contribute to a candidate
19 or national party was unconstitutional. 6 McCutcheon, 572 U.S. at
194. The Court held that the aggregate limit on contributions
was more than a “modest restraint upon protected political
activity” because the limit functionally prohibited an
individual from fully contributing to primary and general
elections campaigns of ten or more candidates. 7 Id. at 204. In
balancing the First Amendment interest with the government’s
burden of showing that the aggregate limits further the
permissible objective of preventing quid pro quo corruption, the
Court stated “there is not the same risk of quid pro quo
corruption or its appearance when money flows through
independent actors to a candidate, as when a donor contributes
to a candidate directly.” Id. at 210. The Court also noted
“[t]he absence of prearrangement and coordination of an
expenditure with the candidate or his agent . . . undermines the
value of the expenditure to the candidate[,] but probably not by
95 percent.” Id. at 214.
Plaintiffs point to the McCutcheon decision and argue that
the Court recognized that “the lack of coordination may make an
6 The base limit, which restricted how much money a donor may contribute to any particular candidate or committee, was not challenged. 7 The base limits were such that an individual would reach the
aggregate limit after contributing the max base amount, $5,200 each, to nine candidates. Therefore, the aggregate limit functioned as an outright ban on further contributions to any more candidates. McCutcheon, 572 U.S. at 204. 20 expenditure worth less but not worthless.” Pls.’ Opp’n., ECF No.
42 at 33. And therefore, plaintiffs argue, independent
expenditures cannot be wholly non-corrupting since they retain
some value. Id. McCutcheon, however was not about independent
expenditures but rather contributions directed to a particular
candidate or party committee. Id. at 193–94. In any event,
McCutcheon did not purport to overturn SpeechNow or Citizens
United.
The Court recognizes that there is some tension between
SpeechNow and other Supreme Court decisions. But that tension
flows from inconsistencies between Citizens United and prior
Supreme Court campaign finance decisions. See McCutcheon, 572
U.S. at 240–45 (Breyer, J., dissenting)(explaining statements in
Citizens United about proper contours of corruption “conflict
not just with the language of [prior precedent] but with . . .
the very holding[s]” of prior Supreme Court cases).
Nevertheless, the D.C. Circuit has spoken on the issue--limits
on contributions to Super PACs are unconstitutional--and the
D.C. Circuit’s reasoning is binding on this Court. Plaintiffs
point to no Supreme Court cases which show that SpeechNow has
been overruled.
Plaintiff’s allegations about the violations of the Super
PACs fall squarely within the holding of SpeechNow. It cannot be
said that the FEC’s determination, which was based on SpeechNow,
21 was contrary to law. To do so would be tantamount to a
declaration that binding precedent of the D.C. Circuit was
unlawful. And that is not something this Court is prepared to
say. 8
IV. Conclusion
This case centers on the balance of two competing
interests. On one hand, “[t]here is no right more basic in our
democracy than the right to participate in electing our
political leaders . . . [which includes] contribut[ing] to a
candidate’s campaign.” McCutcheon, 572 U.S. at 191. On the other
hand, “[t]o say that Congress is without power to pass
appropriate legislation to safeguard an election from the
improper use of money to influence the result is to deny to the
nation in a vital particular the power of self protection.”
McConnell v. FEC, 540 U.S. 93, 223–24 (2003)(alterations and
citation omitted). In SpeechNow, the D.C. Circuit struck that
balance and ruled that any contribution limits to independent
expenditure-only groups (i.e., Super PACs) were unconstitutional
because the government has absolutely no anti-corruption
interest in stopping contributions to such groups. 599 F.3d at
695. The FEC followed that opinion in deciding to dismiss the
8 Because the FEC correctly applied SpeechNow in dismissing the administrative complaint, the Court need not decide whether the Commission erroneously acquiesced to SpeechNow or whether the FEC’S reliance on its advisory opinion was contrary to law. 22 administrative complaint against the Super PACs in this case.
Accordingly, the FEC did not act contrary to law, and
SO ORDERED.
Signed: Emmet G. Sullivan United States District Judge February 28, 2019