WASHINGTON -- The Federal Election Commission drew a line Thursday on how far campaign finance laws will unravel in the wake of the Supreme Court's 2010 Citizens United ruling. The FEC ruled unanimously against a controversial proposal from Sen. Mike Lee (R-Utah) to open an independent expenditure-only account, commonly known as a super PAC, within his leadership PAC.
Lee asked the commission to approve the creation of a separate segregated fund within his Constitutional Conservatives Fund that could receive unlimited contributions from corporations, unions and individuals to be spent on independent expenditures benefiting other candidates for office. Lee would have been the first member of Congress to directly control his own super PAC.
A member of the Tea Party Caucus, Lee is seeking to increase his clout in Congress and conservative circles in much the same way that Sen. Jim DeMint (R-S.C.) has used his leadership PAC to endorse and make independent expenditures in favor of conservative candidates, including Republican primary challengers.
At the FEC hearing on the request, Dan Backer, the lawyer for Lee, argued that the Supreme Court's opinion in Citizens United should be applied across the board to include political committees under the control of members of Congress. He noted that the Citizens United decision said that independent expenditures cannot be corrupting because they are independent.
Commissioner Donald McGahn, an outspoken conservative opposed to most campaign finance laws, led the commissioners' response by noting this request went too far even for him. "Your argument essentially does away with contribution limits," he said, adding, "It's well beyond what we do here and well beyond what I do here, which is saying something."
McGahn explained that he likely agrees with the policy argument that the government should not discriminate when applying regulations on independent expenditures, but that the statute and regulations clearly limit contributions to members of Congress to protect against corruption or the appearance thereof.
"Personally I probably agree, but we kind of lost that fight," McGahn said. "Why do you have to run that money through the senator's hands? ... As soon as you bring him into the equation, that's the problem."
Campaign finance reform advocates had previously called for the commission to reject Lee's request. Paul S. Ryan, the FEC director at the Campaign Legal Center, said in a Nov. 3 statement, "This is an easy question, which the Commission should answer with an unequivocal no."
The Lee case began after Backer won another court case (Carey v. FEC) that allowed a traditional PAC to open a segregated account that would operate as a super PAC. Backer has suggested that he would take Lee's case to court as well.
Professor Rick Hasen, an elections law expert at the University of California-Irvine School of Law, told The Huffington Post that predicting the outcome of a court case is difficult due to the language of Citizens United. "The question is whether in the post-Citizens United world, the statutes banning soft money remain constitutional. On that question, before this Roberts Court, all bets are off," he said, referencing Chief Justice John Roberts.
In an earlier Slate article, Hasen wrote that Justice Anthony Kennedy's declaration in the Citizens United opinion that independent expenditures cannot give rise to corruption is leading to a rapid unraveling of campaign finance laws. Hasen wrote, "Kennedy's unfortunate sentence -- which denies the reality that large independent spending favoring a candidate can sometimes corrupt or create the appearance of corruption -- looks like it may doom those soft-money rules too."
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