Against Super PACs

    What would Hamilton think about super PACs?

    As you certainly know, the Supreme Court has held that corporations (and unions and rich people generally) can spend unlimited amounts of money supporting or opposing a political candidate — just as long as they do it “independently” of the candidate’s campaign. That case was Citizens United.

    What you might not know is that Citizens United did not create the super PAC. Instead, the super PAC was born when a lower court reasoned that if you spend unlimited amounts to support or oppose a political candidate, you should be able to give unlimited amounts to a committee who would support or oppose a political candidate.

    That case was SpeechNow. We believe SpeechNow is just wrong.

    In particular, we believe it is especially wrong for the conservatives on the Supreme Court who say they are following the will of the Framers of our Constitution. We believe we can show that the super PAC creates precisely the kind of corruption that the Framers were trying to end, and that any consistent “originalist” should therefore reject super PACs.

    Working with citizens in Alaska — where state law gives citizens the right to demand election law be enforced — we want to take this question to the Supreme Court: What would the Framers have said about super PACs?

    Because when they consider the evidence, we believe that we can convince at least a few of the conservatives that neither Hamilton or Madison or Jefferson or Washington or any of them (save perhaps that scoundrel Burr) would ever have believed their Constitution protected a super PAC.

    Help us by spreading the word, and if you can, by chipping in the help with the costs of the suit.

    Frequently Asked Questions

    Why Alaska?

    A case that works its way up to the U.S. Supreme Court must begin somewhere, and Alaska is the perfect venue for our legal challenge. In particular, state law in Alaska already places limits on contributions to independent political groups. Under law that is supposed to be enforced, individuals can donate up to $500 to any such group, and other outside organizations (like unions or advocacy groups) can contribute up to $1,000 to any given political group. These contribution limits make sense, because Alaska, with its abundant natural resources and small population, is a state that is particularly vulnerable to the corrupting influence of big money in politics. Placing limits on donations ensures that no one group gets an outsize say just because it has money to spend during an election cycle. This, in turn, is supposed to ensure that politicians are responsive to everyday citizens—not their big-money supporters.

    But, for several election cycles, the state entity that is supposed to police these limits—the Alaska Public Offices Commission, or “APOC”—has refused to enforce these limits and has instead permitted independent groups to collect money in unlimited amounts from wealthy individuals and advocacy groups. It has done so because it has concluded that the limits are unconstitutional under several lower court decisions striking down similar laws in other states.

    Fortunately, Alaska has a unique citizen-suit provision, which means that any citizen may to sue to force election administrators to enforce election law. In other words, Alaska permits citizens across the state to formally ask the regulators this important question: why is Alaska not enforcing the contribution limits that are supposed to protect the State’s politics from being corrupted by big money groups?

    Who Are the Plaintiffs?

    The Plaintiffs in our suit—Pat Lambert, Donna Patrick, and James Barnett—stand in for all citizens in Alaska who wish to ask Alaska’s regulators to enforce the existing laws related to donations to these so-called independent expenditure groups. They believe this issue can unite Democrats, Republicans, and Independents alike, because regardless of political affiliation, we should all want to ensure that our government is responsive to the needs and preference of the people, and that it is not bogged down doing favors for large companies, unions, or outside groups who give our politicians advertising support come election time.

    Who Are We Suing?

    The formal complaint asks APOC why it has failed to enforce the contribution limits against two different entities: one that supported a Republican, and another that supported Democrats. The first entity is a right-leaning independent group called Interior Voters for John Coghill. This is an outside group that supported the election of Republican John Coghill, who is currently the state Senate majority leader. This outside group accepted over $40,000 from a group called The Accountability Project. The Accountability Project claims to hold “candidates and elected officials accountable for how they impact jobs, business and economic development in Alaska.” The Anchorage Daily News, however, described it as a “business-backed political group” that supported very conservative candidates in the last election cycle.

    The second entity is a left-leaning independent group called Working Families of Alaska. This group supported a wide variety of Democratic and moderate or left-leaning candidates, and accepted over $175,000 in donations in total from two different union affiliated groups: Laborers Local 341, and Laborers’ Political Education League.

    These entities were not named because of any misconduct or because of any particular political stance they took. Instead, as best we can tell, they both filed their required reports and took and spent money in accordance with what APOC believes is the current law in Alaska. But even though the groups come from opposite sides of the political spectrum, they are united because both groups accepted donations well above the statutory limit (which is $1,000). Thus, we are asking APOC why it did not enforce the existing laws against these two entities.

    What Happens Next?

    Once we file our Complaint, the two named entities will respond, and then APOC will make a decision on our complaint. We expect this first stage to go quickly, and we hope to get a decision within six months. There may be a hearing.

    We expect APOC will explain that it failed to enforce existing law because it concluded that the existing laws were unconstitutional in light of Citizens United and SpeechNow, a non-binding case from a lower court. Once it does that, we can take an appeal to the trial court in Alaska. After that, we can go to the Alaska Supreme Court, and, after that, we hope to go to the U.S. Supreme Court. It could take several years to work its way all the way up the system.

    What Happens If We Win?

    In it not an understatement to say that, if we win at the U.S. Supreme Court, we change everything—or, almost everything. If the government may enforce limits on donations to independent groups, then the ability of corporations, unions, and very wealthy individuals to spend money directly supporting or opposing political candidates is greatly diminished. That, in turn, will finally reduce the dangerous dependence that currently exists between politicians and their backers. Cutting this unhealthy link will make government more responsive to everyday citizens.

    Who Is Involved in This Case?

    This case is a project of Equal Citizens, and is led by our founder, Professor Lawrence Lessig at Harvard Law School. It is managed day-to-day by Equal Citizens Chief Counsel Jason Harrow, with the assistance of attorneys Scott Broadwell and Liz Hodes in the Anchorage office of law firm Davis Wright Tremaine.

    How Does This Case Connect with Equal Citizens' Mission?

    Equal Citizens is dedicated to reforms that will achieve citizen equality. Getting big money out of politics is one important component of that, but there are others that Equal Citizens is working on too. For instance, Equal Citizens is also about to launch a series of coordinated lawsuits to challenge the winner-take-all allocation of electors in the Electoral College. If Equal Citizens succeeds in this legal challenge, which is called “Equal Votes,” we will eliminate the inequality in the way we elect our president that exists purely because of where people live and whether they live in a swing state or not.

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    Equal Citizens is a non-profit organization dedicated to reforms that will achieve citizen equality. We launch campaigns that will end the corruption of our representative democracy by restoring the core promise of equality.