Why Limits on Contributions to Super PACs Should Survive Citizens United

60 Pages Posted: 9 Aug 2017 Last revised: 6 Apr 2018

Albert W. Alschuler

University of Chicago Law School

Laurence H. Tribe

Harvard Law School

Norman Eisen

Brookings Institution

Richard W. Painter

University of Minnesota Law School

Date Written: August 8, 2017

Abstract

Soon after the Supreme Court decided Citizens United v. FEC, the D.C. Circuit held all limits on contributions to super PACs unconstitutional. Its decision in SpeechNow.org v. FEC created a regime in which contributions to candidates are limited but in which contributions to less responsible groups urging votes for these candidates are unbounded.

No legislator voted for this system of campaign financing, and the judgment that the Constitution requires it is astonishing. Forty-two years ago, Buckley v. Valeo held that Congress could limit contributions to candidates because these contributions are corrupting or create an appearance of corruption. According to the D.C. Circuit, however, Congress may not prohibit multi-million-dollar contributions to satellite campaigns because these contributions do not create even an appearance of corruption.

The D.C. Circuit said that a single sentence of the Citizens United opinion compelled its result. It wrote, “In light of the Court’s holding as a matter of law that independent expenditures do not corrupt or create the appearance of corruption, contributions to groups that make only independent expenditures also cannot corrupt or create the appearance of corruption.”

This Article contends that, contrary to the D.C. Circuit’s reasoning, contributions to super PACs can corrupt even when expenditures by these groups do not. Moreover, the statement that the D.C. Circuit took as its premise was dictum, and the Supreme Court did not mean this statement to be taken in the way the D.C. Circuit took it.

The Supreme Court’s long-standing distinction between contribution limits and expenditure limits does not rest on the untenable proposition that candidates cannot be corrupted by funds paid to and spent on their behalf by others. Rather, Buckley noted five differences between contributions and expenditures. A review of these differences makes clear that contributions to super PACs cannot be distinguished from the contributions to candidates whose limitation the Court upheld.

The ultimate question posed by Buckley is whether super PAC contributions create a sufficient appearance of corruption to justify their limitation. This Article reviews the statements of candidates of both parties in the 2016 presidential election, the views of Washington insiders, and public opinion polls. It shows that SpeechNow has sharpened class divisions and helped to tear America apart.

he Justice Department did not seek Supreme Court review of the SpeechNow decision. In a statement that belongs on a historic list of wrong predictions, Attorney General Holder explained that the decision would “affect only a small subset of federally regulated contributions.” Although eight years have passed since SpeechNow, the Supreme Court has not decided whether the Constitution guarantees the right to give unlimited funds to super PACs. A final section of this Article describes the efforts of members of Congress and candidates for Congress to bring that question before the Court. The Federal Election Commission is opposing their efforts, offering arguments that, if accepted, would be likely to keep the Court from ever deciding the issue.

Suggested Citation

Alschuler, Albert W. and Tribe, Laurence H. and Eisen, Norman and Painter, Richard W., Why Limits on Contributions to Super PACs Should Survive Citizens United (August 8, 2017). U of Chicago, Public Law Working Paper No. 626; 86 Fordham Law Review 2299 (2018). Available at SSRN: https://ssrn.com/abstract=3015462 or http://dx.doi.org/10.2139/ssrn.3015462

Albert W. Alschuler (Contact Author)

University of Chicago Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States
773-702-0730 (Fax)

Laurence H. Tribe

Harvard Law School ( email )

1575 Massachusetts
Hauser 418
Cambridge, MA 02138
United States

Norman Eisen

Brookings Institution ( email )

1775 Massachusetts Ave, NW
Washington, DC 20036
United States

Richard W. Painter

University of Minnesota Law School ( email )

229 19th Avenue South
Minneapolis, MN 55455
United States
612-626-9707 (Phone)

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