Washington Post: The man who helped create super PACs says they’re here to stay
July 8th, 2016
By Matea Gold
https://www.washingtonpost.com/news/post-politics/wp/2016/07/08/the-man-who-helped-create-super-pacs-says-theyre-here-to-stay/
Conservative activist David Keating, who launched the case that created super PACs, is not concerned a new legal effort will succeed in shutting down the big-money groups. “I think they’re here to stay, because it’s basically Americans getting together and speaking about the government,” Keating said.
Super PACs are the product of SpeechNow.org v. FEC, a 2010 federal appellate court decision that allows individuals and corporations to pool unlimited sums of money to spend on independent political activity. A bipartisan team of attorneys including Laurence Tribe, a professor of constitutional law at Harvard University, and Richard Painter, who was the chief ethics lawyer for former president George W. Bush, announced a new attempt this week to overturn the case.
The thrust of their argument, which they hope to get the Supreme Court to consider: that the lower court erred in its interpretation of a line in the Citizens United decision, handed down two months before SpeechNow.org.
But Keating said he’s confident in the legal underpinnings of SpeechNow.org, which he said predate the controversial Citizens United ruling. “SpeechNow was a slam dunk after Citizens United, but it was a very highly probable even before it,” he said.
Keating decided to pursue the case after reading a concurring opinion that Justice Harry Blackmun wrote in the 1981 Supreme Court case California Medical Assn. v. FEC. In it, Blackmun said he believed it was important to maintain contribution limits on traditional PACs that give money directly to candidates because they “pose a perceived threat of actual or potential corruption.”
But he added that he would not support such limits on “a committee that makes only independent expenditures.” “I remember reading that case and that’s where I got the idea of putting together group like SpeechNow,” Keating said. He filed the complaint in February 2008, arguing that the group should not be subject to contribution limits because it did not plan to spend money in conjunction with a candidate or party. In March 2010, the U.S. Court of Appeals agreed.
“Basically, the SpeechNow case said, ‘If one person can make unlimited speech, why can’t two of us get together and pool our money and speak?'” said Keating, now president of the Center for Competitive Politics.
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In a series of tweets Thursday night, veteran Democratic campaign finance lawyer Marc Elias warned that the challengers will not be able to file a suit against the FEC for failing to to enforce campaign finance laws because the agency is following the appellate court’s order. “This case won’t go that far,” he wrote.
