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J. D. VANCE IS TRYING TO PUSH CITIZENS UNITED FURTHER  
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Freddy Brewster
September 13, 2024
Jacobin [[link removed]]

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_ J. D. Vance and other Republicans are spearheading a lawsuit that
aims to get the Supreme Court to move beyond its Citizens United
decision and tear up some of the last remaining rules designed to
limit the influence of money in politics. _

J.D. Vance, Jeff Dean/Associated Press

 

Vice-presidential candidate Sen. J. D. Vance (R-OH) and other
Republicans are spearheading a lawsuit aiming to prompt the Supreme
Court to move beyond its landmark _Citizens United_ decision and
tear down some of the last remaining rules designed to prevent
megadonors’ money from influencing public officials. What’s more,
Vance has ties to one of the appeals judges who agreed with the effort
and just helped tee up the case for Supreme Court consideration.

If the Supreme Court ends up hearing Vance’s new case, it would give
the additional three President Donald Trump
[[link removed]]–appointed judges who
were not on the court during _Citizens United_ an opportunity to go
even further than that landmark decision — an outcome hinted at by
Justice Clarence Thomas in his _Citizens United _concurring opinion
saying the ruling didn’t go far enough.

Experts say Vance’s lawsuit, as well as a new regulatory decision
allowing a candidate to work hand in hand with a deep-pocketed outside
election group, is part of a coordinated effort, decades in the
making, to destroy the last vestiges of campaign finance laws designed
to prevent the wealthy and the powerful from spending limitless
amounts directly on candidates and demanding favors in return.

In 2010, the Supreme Court’s _Citizens United v. Federal Election
Commission_
[[link removed]] used
a relatively esoteric and narrow campaign finance dispute to issue a
sweeping precedent removing restrictions on independent election
expenditures as long as they were “not coordinated with a
candidate.” The decision gave rise to
“independent-expenditure-only committees,” or super PACs, which
are political action groups that can raise and spend unlimited amounts
of money on political campaigns, so long as they do not directly
coordinate such expenditures with candidates for public office.

Vance’s new lawsuit
[[link removed]] —
filed alongside the National Republican Senatorial and Congressional
Committees, and former representative Steve Chabot (R-OH) — aims to
abolish some of the last barriers separating candidates and buckets of
cash from corporations and wealthy donors. In specific, the case
argues for permitting megadonors to use national party committees to
directly coordinate their limitless spending directly with candidates.

Though that argument lost earlier this month in the Sixth Circuit
Court of Appeals in Cincinnati, Ohio, the case succeeded in prompting
judges on that lower court to call for clarification from the Supreme
Court.

If the high court heeds those calls and ends up hearing the case on
appeal, conservative justices could agree with Vance — or use the
case to issue an even more expansive set of precedents deregulating
the campaign finance system.

“I think you would see party committees becoming huge conduits for
big donors,” said the Campaign Legal Center’s Tara Malloy about
what could happen if Vance’s lawsuit is successful.“But they would
do so in a way that would really make them channels of corruption.
Because unlike a super PAC, a party committee is uniquely tied to
their candidates, and here they’re seeking to spend unlimited
amounts of money in direct coordination with candidates.”

In his _Citizens United_ concurring opinion, Thomas made clear that
he supports no limits on campaign spending and believes disclosure
requirements are a violation of the First Amendment.

“The Court’s constitutional analysis does not go far enough,”
Thomas wrote
[[link removed]] about
the _Citizens United_ decision. “Disclaimer and disclosure
requirements enable private citizens and elected officials to
implement political strategies specifically calculated to curtail
campaign-related activity and prevent the lawful, peaceful exercise of
First Amendment rights.”

Friends in High Places

Vance’s lawsuit was initially filed in 2022
[[link removed]],
and in their plea for the appeals court to hear the case, lawyers for
Vance and his Republican colleagues asked the court that if they ruled
against them, the appeals court should “promptly . . . permit
Plaintiffs to seek Supreme Court review,” according to court
documents filed on March 5.

That plea was heard six months later on September 5, when a
sixteen-judge panel on the Sixth Circuit Court of Appeals — which
hears cases from lower courts in Kentucky, Michigan, Ohio, and
Tennessee — ruled against Vance and his Republican allies, stating
that circuit courts do not have the power to overturn Supreme Court
precedent limiting coordination between national party committees and
candidates.

However, two of those judges, both appointed by Trump, issued
opinions
[[link removed]] stating
that they agreed with Vance’s lawsuit to overturn coordination
limits, but ruled against it citing that circuit courts do not have
the authority to overrule Supreme Court precedent.

“These limits run afoul of modern campaign-finance doctrine and
burden parties’ and candidates’ core political rights,” wrote
[[link removed]] Judge
Amul Thapar. “For the plaintiffs, however, our court is not the
proper audience for these concerns.”

Thapar is the former boss of Vance’s wife, Usha Chilukuri Vance
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when she worked as a law clerk in a Kentucky district court.

Jane Stranch, another judge on the panel who didn’t agree with the
plaintiffs, noted in her opinion that the suit was expressly designed
to allow the Supreme Court to overturn its previous ruling on national
party committees coordinating with candidates.

“​​The plaintiffs filed this lawsuit to ask the Supreme Court to
overrule its decision in _FEC v. Colorado Republican Federal Campaign
Committee_, and urge us to rule against them ‘promptly’ to
facilitate the higher court’s review,” wrote
[[link removed]] Stranch,
who was appointed by President Barack Obama. “That posture should
have made this an easy case, one we could unanimously resolve in a
handful of pages. It instead produces handfuls of opinions encouraging
the Supreme Court to rework campaign finance, First Amendment, and
constitutional law in new and audacious ways.”

The case is the latest attempt to dismantle campaign finance laws,
said Chris deLaubenfels, general counsel and legal director for End
Citizens United, an advocacy group dedicated to getting big money out
of politics.

“It’s a blatant power grab aimed at giving their corporate special
interest and billionaire donors more power and influence over
government,” deLaubenfels said in a statement to the_ Lever_.
“While we’re encouraged by the Sixth Circuit’s ruling to strike
down this challenge, we have no faith in the corrupt Supreme Court
majority.”

At the same time, a new Federal Elections Commission (FEC) ruling
[[link removed]] just
removed one of the main firewalls stopping independent organizations
like super PACs from using their unlimited pools of cash to directly
work with candidates’ campaigns. The ruling was issued at the behest
of Sen. Lindsey Graham (R-SC), who wished to merge his campaign
committee with a super PAC to create a joint fundraising committee.

Vance’s and Graham’s moves are a part of a decades-old master
plan [[link removed]] to dismantle laws aimed
at curtailing corporate influence in elections.

In 1971, soon-to-be Supreme Court justice Lewis Powell wrote
a memorandum
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claimed corporations were under “broad attack” and that business
elites needed to come together to work on the “survival of what we
call the free enterprise system.”

In the memo, Powell wrote that the Supreme Court “may be the most
important instrument for social, economic and political change.” In
recent years, the Supreme Court has rolled back
[[link removed]] campaign
finance laws
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bribery
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and promoted corporate interests by weakening environmental
regulations
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among other rulings
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Vance did not respond to a request for comment.

“The Goal Here Is to Eviscerate”

At the heart of Vance and the National Republican Senatorial and
Congressional Committees’ lawsuit is a 2001 Supreme Court ruling
that barred party committees like the National Republican Senatorial
and Congressional Committees and the Democratic Senatorial and
Congressional Committees from coordinating spending with candidates.

In the 2001 case — called _FEC v. Colorado Republican Federal
Campaign Committee_ [[link removed]] —
Colorado Republicans attempted to overturn the 1971 Federal Election
Campaign Act, which limited coordinated spending between national
party committees and federal candidates.

The court in 2001 rejected
[[link removed]] the
Colorado state committee’s arguments that coordinated party spending
limits are unconstitutional and a core part of party committees.

The court highlighted
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“unlimited party coordinated expenditures would make political
parties an attractive vehicle for donors seeking to circumvent the
individual contribution limits in order to buy influence with
candidates and officeholders,” according to the Campaign Legal
Center.

“These limits are seen as a necessary check on the corporate effects
of large contributions that sometimes go to and through the party
committees for candidates,” said Malloy with the Campaign Legal
Center. “The theory was that without these spending limits, a big
donor could simply circumvent the lower amount of how much you can
give to a candidate directly by giving a larger amount to the
party.”

But now, Vance and his Republican allies are arguing that the Supreme
Court’s views on coordinated spending and contribution limits have
changed since 2001, highlighting how the court has limited campaign
spending restrictions to essentially bar only blatant examples of
quid-pro-quo corruption, in which donations are explicitly given in
exchange for political favors.

If the lawsuit is successful and party committees are allowed to spend
freely on candidates, corporate interests and wealthy donors could use
the committees to circumvent remaining limits on contributions
[[link removed]] —
the total amount that individuals can give directly to candidates or
their affiliated committees.

The current limits for coordinated spending between national
committees and candidates are $32.3 million
[[link removed].] for
presidential candidates. Limits vary for Senate and House
candidates by state
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but in Ohio, Vance’s home state, the limits
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$1,138,000 per Senate candidate and $61,800 for a U.S. House
candidate.

Vance and his Republican co-plaintiffs are essentially trying to
bypass these limits.

“[The Republicans’] goal here is to eviscerate the remaining and
incredibly important features of campaign law that limit
contributions,” said Zephyr Teachout, a professor of law at Fordham
University.

As part of their argument
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the high court has shifted its thinking on coordinated spending, Vance
and his allies cited a 2022 Supreme Court ruling
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[[link removed]] Sen. Ted
Cruz’s (R-TX) campaign committee was allowed to repay him money he
lent to the committee, plus interest.

The Republicans also referenced a 2014 Supreme Court ruling
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down previous limits
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how much an individual can donate in an election cycle, but kept in
place restrictions
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how much an individual can give directly to a candidate and their
affiliated committees.

The Sixth Circuit Court of Appeals ruled it didn’t have the
authority to overturn the 2001 Supreme Court decision
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coordination between national parties and candidates. But buried in
the decision is a potential ticking time bomb: an acknowledgment that
the case could be heard by the Republican-friendly Supreme Court.

“The key reality is that the Supreme Court has not overruled the
2001 Colorado decision or the deferential review it applied to these
provisions of the Act,” Chief Judge Jeffrey S. Sutton wrote in his
opinion
[[link removed]]. “In
a hierarchical legal system, we must follow that decision and thus
must deny the plaintiffs’ First Amendment facial and as-applied
challenges.”

The case was heard in front of the full sixteen-judge court, which is
an unusually large forum, Malloy said. Most appeals cases are heard by
three judges, according
[[link removed].] to
the US Federal Courts.

Such so-called en banc procedures, in which all judges in a circuit
consider arguments in a case, are usually reserved for “the most
judicially significant issues,” according to a 2021 _University of
Cincinnati Law Review_ article
[[link removed]],
which added that the Sixth Circuit appears to be “not afraid to take
up politically charged and newsworthy issues” in en banc procedures.

Malloy said that it was also unusual that so many of the judges
suggested that the Supreme Court was the proper venue for a ruling.

“If you read the decision, the Republican Party committees are
really looking to strike down these long-standing party coordinated
spending limits,” Malloy said. “But in order to do so, they
actually have to get either a lower court or the Supreme Court to
reconsider this standing Supreme Court precedent . . . that upheld the
limits.”

There could be widespread effects to campaign finance laws if the
Supreme Court overturns the 2001 decision, Malloy said. Party
committees would be able to raise vast sums from a single donor and
direct that money to whoever the donor wishes — potentially allowing
them to supersede super PACs as corporate interests’ preferred
vehicle for election spending.

Multimillion-dollar donations are a common occurrence for super PACs.
Earlier this year, LinkedIn cofounder and tech billionaire Reid
Hoffman gave $2 million
[[link removed]] to
a super PAC supporting President Joe Biden
[[link removed]]. Timothy Mellon,
billionaire scion of the Mellon banking family
[[link removed]], gave $50 million to
a super PAC
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former president Trump in May.

A Shift at the FEC

Earlier this summer, lawyers for Graham petitioned the FEC, which
oversees election laws and regulations, to allow the senator’s
campaign to partner with the super PAC Security Is Strength. That
super PAC, which
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million
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election purposes since it launched in 2015, has spent more than $7.6
million supporting Graham’s failed 2015 presidential run
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his Senate election efforts, data
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Graham’s campaign was seeking the ability to “share data,”
“coordinate scheduling logistics,” and “forward contributor
information” with the super PAC, the FEC noted in its opinion
[[link removed]]. In
exchange, the campaign reportedly promised to not coordinate with the
group on financial transactions and other campaign efforts that
violate election laws.

“Team Graham states that Senator Graham, Team Graham, and their
agents will not discuss the nonpublic campaign plans, projects,
activities, or needs of Senator Graham or his campaign with Super
PAC,” the FEC wrote
[[link removed]].

On August 29, the FEC voted five to one
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allow the arrangement, provided the resulting joint fundraising
committee follows stipulations on how much money must first go to
Graham’s own campaign coffers and how larger amounts will be split
between Graham’s political action committee, Security is Strength,
and the National Republican Senatorial Committee.

“Team Graham states that it intends to comply with all Commission
regulations for joint fundraising activity, including recordkeeping,
allocation, and reporting requirements,” the FEC wrote.

But FEC vice chair Ellen Weintraub, the dissenting commissioner, was
skeptical of the arrangement.

In a statement
[[link removed]] outlining
her dissent, Weintraub wrote that the Security is Strength PAC — the
super PAC partnering with Graham’s campaign — has not disclosed
what kinds of “safeguards or firewalls” would be implemented to
prevent any unlawful coordination, and that granting Graham’s
campaign permission to partner with the super PAC is a “classic
example of not seeing the forest for the trees.”

“The super PAC would be privy to the campaign’s views on messaging
and donor outreach,” Weintraub wrote
[[link removed]]. “This
presupposes an ongoing relationship between two entities that are
supposed to be completely independent of each other. It is hard to
fathom how that necessary independence will be maintained when the
super PAC is integrated into the campaign’s fundraising
operations.”

Weintraub wasn’t the only person concerned about allowing Graham to
coordinate with a super PAC.

In a comment letter
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FEC, the Campaign Legal Center urged the FEC to reject the proposal
“because candidates, political parties, and super PACs creating a
[joint fundraising committee] and working together to plan public
communications is the precise opposite of the independence that
federal courts require as a predicate to the very existence of super
PACs.”

Likewise, the Elias Law Group, which represents the Democratic
Senatorial and Congressional Campaign Committees, urged
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to reject Graham’s proposal, stating that if the proposal were to be
granted it would “greenlight something truly extraordinary.”

“The request itself admits that the super PAC will be talking
directly to Senator Graham and his campaign about paid advertisements
distributed by the joint fundraising committee,” the Elias
Group wrote
[[link removed]]. “These
paid advertisements will directly benefit the Senator’s campaign.
Collaboration on these advertisements would therefore of course
involve a discussion of the campaign’s plans, projects, activities,
or needs with the super PAC.”

The FEC commissioners are made up of three Democratic appointees and
three Republican appointees, and the commission has been deadlocked on
votes for decades. But that recently started to change thanks to
Democratic appointee Dara Lindenbaum siding with Republicans to
“roll back limits on how politicians, political parties, and super
PACs raise and spend money,” the _New York
Times_ recently reported
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In 2022, Biden tapped Lindenbaum, a former partner at Sandler Reiff
Lamb Rosenstein & Birkenstock, P. C., a Washington, DC–based law
firm focused [[link removed]] on “advising clients
involved in the business of politics,” for the position. The
appointment was originally applauded by the Campaign Legal Center.

“To reduce political corruption, we need a strong, effective FEC to
enforce campaign finance laws and hold political candidates and their
donors accountable — the nomination of qualified candidates is an
essential component of a successful FEC,” the group wrote
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2022.

But since her appointment, Lindenbaum has provided the swing vote on
several decisions removing safeguards designed to reduce political
corruption and misbehavior. That includes allowing candidate campaigns
and super PACs to jointly plan door-to-door canvassing operations
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federal candidates to raise limitless funds for state ballot
initiatives [[link removed]];
and reducing restrictions
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mass text-messaging campaigns.

Lindenbaum also voted in favor
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Graham campaign coordinating with its super PAC.

The FEC is currently proposing
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roll back donor disclosure requirements by redacting donors’ mailing
addresses from FEC reports. In a comment letter
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the proposal, Sen. Sheldon Whitehouse (D-RI) wrote that this could
create a “disastrous loophole allowing entire political
organizations to obscure their donors through a secret process.”

“Anonymous spending in elections fundamentally undermines electoral
transparency, an essential element of free and fair elections,”
Sheldon wrote. “The proposed directive would allow a political
organization to seek a blanket exemption from publicly disclosing (or
even filing with the Commission) some or all of the required
information for its contributors.”

Federal regulators’ ability to prevent corruption and limit
coordination between megadonors and candidates could be further
constrained if Trump wins reelection.

According to Project 2025
[[link removed]], a
corporate-backed blueprint
[[link removed]] developed by the right-wing
Heritage Foundation think tank to radically reshape the federal
government, the new Trump administration would overhaul
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FEC and gut its authority
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campaign spending. The manifesto also aims to hike political
contribution limits, weaken donation reporting requirements, and limit
federal prosecutors’ ability to enforce election laws by forcing
them to first seek charging approval from the perpetually deadlocked
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Thomas, who in 2010 argued that _Citizens United_ didn’t go far
enough in abolishing campaign spending limits and nixing disclosure
requirements, has deep
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the Heritage Foundation and has been routinely
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the group
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His wife, Ginni Thomas, was paid nearly $1 million between 2001 and
2007 while employed
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the think tank.

_Freddy Brewster is a freelance reporter and has been published in
the Los Angeles Times, NBC News, CalMatters, the Lost Coast Outpost,
and other outlets across California._

* Citizens United
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* J.D. Vance
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* Money in Politics
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