v.

FEDERAL ELECTION COMMISSION,

RESPONDENT.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

AMICI BRIEF OF THE STATES OF WASHINGTON,

COLORADO, CONNECTICUT, DELAWARE, DISTRICT OF

COLUMBIA, HAWAII, ILLINOIS, MAINE, MARYLAND,

MASSACHUSETTS, MICHIGAN, MINNESOTA, NEW

MEXICO, PENNSYLVANIA, RHODE ISLAND, VERMONT,

AND VIRGINIA IN SUPPORT OF PETITIONERS

ROBERT W. FERGUSON

Attorney General

NOAH G. PURCELL

Solicitor General

Counsel of Record

TERA M. HEINTZ

Deputy Solicitor General

CRISTINA SEPE

Assistant Attorney General

1125 Washington Street SE

Olympia, WA 98504-0100

360-753-6200

noah.purcell@atg.wa.gov

(Additional counsel listed on signature page.)
REASONS FOR GRANTING THE PETITION .........4

I. The Risk and Appearance of Corruption 

Created by Eliminating Contribution 

Limits to Super PACs Presents a 

Matter of Great Importance .............................4

A. Unlimited Contributions to 

Super PACs Create a Pervasive 

Appearance of Corruption .....................4

B. The Elimination of Contribution 

Limits Has Predictably Resulted 

in a Deluge of Super PAC Money 

in State and Local Elections that 

Exacerbate the Risk and 

Appearance of Corruption .....................8

C. Lack of Transparency of Massive 

Contributions to Super PACs 

Exacerbates the Risk and 

Appearance of Corruption ...................13

II. The Question Presented Affects 

Many States ....................................................16

III. A Strong Presumption Favors Review 

of the Court of Appeals Decision 

Invalidating a Federal Statute on 

First Amendment Grounds ............................21

CONCLUSION ..........................................................22
Ariz. State Legislature v. Ariz. Indep. 

Redistricting Comm’n

135 S. Ct. 2652 (2015)............................................20

Blodgett v. Holden

275 U.S. 142 (1927)................................................22

Iancu v. Brunetti

139 S. Ct. 2294 (2019)............................................21

Long Beach Area Chamber of Commerce v. 

City of Long Beach

603 F.3d 684 (9th Cir. 2010)............................17, 19

N.C. Right to Life, Inc. v. Leake

525 F.3d 274 (4th Cir. 2008)..................................18

Republican Party of N.M. v. King

741 F.3d 1089 (10th Cir. 2013)..............................18

Rostker v. Goldberg

453 U.S. 57 (1981)..................................................22

SpeechNow.org v. FEC

599 F.3d 686 (D.C. Cir. 2010)............. 1-4, 10, 17-18

Texans for Free Enter. v. 

Tex. Ethics Comm’n

732 F.3d 535 (5th Cir. 2013)..................................18
United States v. Morrison

529 U.S. 598 (2000)..........................................21, 22

Wisc. Right to Life State Political 

Action Comm. v. Barland

664 F.3d 139 (7th Cir. 2011)............................17, 19

Statutes

52 U.S.C. § 30116 ........................................................2

Alaska Stat. § 15.13.070............................................19

Wis. Stat. § 11.26(4) ..................................................17

Other Authorities

Advisory Letter to New Hampshire 

Secretary of State William M. Gardner, 

Re: Effect of Citizens United Decision on 

Enforcement of RSA 664:4 (Prohibited 

Political Contributions) Regarding 

Political Committees (Aug. 1, 2012)......................20

Alan Suderman & Ben Wieder, 

‘Citizens United’ Ruling Helped Unions Win 

State Elections, Ctr. For Public Integrity, 

Nov. 14, 2013 (updated May 19, 2014), 

https://bit.ly/3fglSCI ..............................................12
https://bit.ly/3iGmBiL..............................................9

Brady Dennis, 

Super PACs, donors turn sights on judicial 

branch, Wash. Post, Mar. 29, 2012, 

https://wapo.st/2ZaVMLV......................................10

Brennan Center for Justice, 

National Survey: Super PACs, Corruption, 

and Democracy (Apr. 24, 2012), 

https://bit.ly/3e9vcqs ................................................5

Cheri Quickmire, Tom Swan & Michael Sullivan, 

Common Cause Conn. & Conn. Citizen 

Action Group, Who Is Buying Our 

Election? A Pre-Election Guide to 

Connecticut Super PACs (Oct. 19, 2018), 

https://bit.ly/2ZeTnzX ............................................12

Chisun Lee et al., 

Brennan Center for Justice, 

Secret Spending in the States (2016), 

https://bit.ly/3hpOiem............................................14

Dan Boyd, 

Out-of-state PACs pour money into 

New Mexico, Las Cruces Sun News, 

Oct. 9, 2018, https://bit.ly/3e5Locs ........................10
Editorial, 

D.C. mayor’s allies wisely shut down 

FreshPAC, Wash. Post, Nov. 10, 2015, 

https://wapo.st/3e92S7J...........................................7

Expert Report of Adam Bonica, Ph.D., 

Patrick v. Interior Voters for John Coghill, 

Case No. 3AN-18-05726CI,

https://bit.ly/2BN7Qdi..............................................6

Geoff Mulvihill, 

AP: Political money in state-level 

campaigns exceeds $2B, Associated Press, 

Nov. 1, 2018, https://bit.ly/2O8eayE .......................9

Heather Haddon, 

Super PACs Target Local Races, 

Wall Street J., Oct. 18, 2015, 

https://on.wsj.com/3iDiofD.......................................8

Idrees Kahloon, 

Outside groups’ influence on 2016 

election grows, super PAC filings show, 

Sunlight Found., Aug. 3, 2015, 

https://bit.ly/38TD6U7...........................................13

Jack Healy, 

School Board Recall Vote in Colorado 

Tests Conservative Policies, N.Y. Times, 

Oct. 28, 2015, https://nyti.ms/3gIO8ON................10
JT Stepleton, 

Darkness on the Edge of Town: 

National Dark Money Targets States, 

FollowTheMoney.org, Nov. 2, 2018, 

https://bit.ly/31YRAR8...........................................14

JT Stepleton, 

Independent Spending Overview, 

2015 and 2016, FollowTheMoney.org, 

Feb. 14, 2018, https://bit.ly/2Cjvi1x ..................8, 13

Karl Evers-Hillstrom & Tatyana Monnay, 

Party-Tied super PACs amassing 

unprecedented sums for congressional 

elections, OpenSecrets.org, Apr. 22, 2020, 

https://bit.ly/2Z7Cbfo .............................................12

Kenneth P. Doyle, 

Super PACs, Party Committees Load 

Up for Congressional Campaigns, 

Bloomberg Gov’t, Apr. 22, 2020, 

https://bit.ly/3gVMPw4..........................................16

Lester Black, 

Fact Check: Big Business Super PACs 

Are Outspending Labor 4-1 in City 

Elections, The Stranger, Oct. 29, 2019, 

https://bit.ly/3edkbEN ...........................................11
Massachusetts Office of Campaign & 

Political Fin., 

Interpretive Bulletin OCPF-IB-10-03

(Oct. 26, 2010), https://bit.ly/3ebfhYX............. 18-19

Michelle Ye Hee Lee, 

Eleven donors have plowed $1 billion 

into super PACs since they were created, 

Wash. Post, Oct. 26, 2018, 

https://wapo.st/3flV6sR............................................5

Nat’l Conference of State Legislatures,

Citizens United and the States

(July 21, 2016), https://bit.ly/3gDYWNX ..............20

Nicholas Confessore, 

A Campaign Inquiry in Utah Is 

the Watchdogs’ Worst Case, N.Y. Times, 

Mar. 18, 2014, https://nyti.ms/2VXLmNJ.............15

OpenSecrets.org, 

Races in Which Outside Spending Exceeds 

Candidate Spending, 2020 Election Cycle, 

https://bit.ly/2Z8vJEU ...........................................12

OpenSecrets.org, 

Super PACs, https://bit.ly/3gPCT6Y 

(last visited July 20, 2020) ....................................16

OpenSecrets.org, 

Super PACs: How Many Donors Give, 

https://bit.ly/38z8c34 (last visited July 20, 2020)...6
OSPIRG Found., 

Outside Spending, Outsized Influence: 

Big and Secret Money in Oregon in the 

2012 Elections, https://bit.ly/2CiKcVM.................15

Polly Grow & Bob DeWeese, 

Seattle Ethics & Election Comm’n, 

2017 Election Report (Mar. 9, 2018), 

https://bit.ly/38ARMYb.................................... 10-11

Pub. Disclosure Comm’n, 

Public Disclosure Reporting Form: 

Citizens for Working Courts Enterprise 

Washington (Oct. 26. 2016), 

https://bit.ly/38AXbyr ............................................11

Pub. Disclosure Comm’n, 

Public Disclosure Reporting Form: 

Judicial Integrity WA PAC (Oct. 19,2016), 

https://bit.ly/2O7TRl2 ............................................11

Robert Gehrke, 

More Swallow emails recovered, 

probe’s price nears $4M, Salt Lake Trib., 

Mar. 8, 2014, https://bit.ly/2AEdJZE ....................15

Robert Moilanen, 

Mega-donor political cash swamps 

state elections, Mpls. Star Trib., 

Sept. 29, 2019, http://strib.mn/3e6ls0d .................13
https://wapo.st/3gEPiee ...........................................6

Rosalind S. Helderman et al., 

Listen: Trump tells associates to 

‘get rid of’ U.S. ambassador to Ukraine, 

Wash. Post, Jan. 25, 2020, 

https://wapo.st/3gwFi6o...........................................7

Sam Karlin, 

Super PACs are pouring millions of 

dollars into Louisiana governor’s race 

to unseat Gov. Edwards, The Advocate, 

Aug. 3, 2019, https://bit.ly/38C5MRr ......................9

Sandra Svoboda & Mike Wilkinson, 

Donor database: Detroit mayoral race

attracted big-time Super PAC money for 

Mike Duggan, Ctr. for Mich./Bridge Magazine, 

July 22, 2014 (updated Jan. 20, 2019),

https://bit.ly/3gFhehT............................................10

Seattle Times Staff, 

AG Says more campaign money hidden 

in I-522 food-label fight, Seattle Times, 

Nov. 20, 2013, https://bit.ly/2BRPZBR..................15

Shannon Mullane, 

Super PAC money floods into Colorado 

state races, Colo. Indep., Aug. 18, 2018, 

https://bit.ly/3efccXD ...............................................9
https://bit.ly/3e3yuf2................................................9

State of Alaska, 

Pub. Offices Comm’n, Advisory Opinion 

Request AO 12-09-CD (May 24, 2012), 

https://bit.ly/38KIYyT............................................19

Theodoric Meyer, 

In Wisconsin, Dark Money Got a Mining 

Company What It Wanted, ProPublica, 

Oct. 14, 2014, https://bit.ly/3iI1I6C;................ 15-16

Utah House of Representatives, 

Report of the Special Investigative 

Committee (Mar. 11, 2014), 

https://bit.ly/3eccD4Y.............................................15

Zaid Jilani, 

Real Estate Tycoon Dumps Money 

Into Super PAC to Stop Zephyr Teachout’s 

Bid for New York Attorney General, 

The Intercept, Sept. 11, 2018, 

https://bit.ly/2VYneKK ..........................................10
confidence in elected officials. The D.C. Circuits 

decision in SpeechNow.org v. FEC, 599 F.3d 686 

(D.C. Cir. 2010) (Pet. App. 45a-68a), reaffirmed in the 

decision below, undermines these State interests in at 

least two ways.

First, while the D.C. Circuit’s decision dealt 

with Congress’s ability to set contribution limits for 

Super PACs, at least four other circuits have since 

struck down state and local laws limiting 

contributions to independent expenditure groups 

based on SpeechNow’s reasoning. Some States have 

further declined to enforce, or have repealed, State 

campaign finance laws limiting contributions to 

independent expenditure groups in the wake of 

SpeechNow. The D.C. Circuit’s erroneous decision has 

thus directly interfered with States’ ability to enact 

and enforce important laws.

Second, SpeechNow has ushered in a decade of 

unprecedented contributions to Super PACs from a 

small pool of ultra-wealthy donors. Super PACs have, 

in turn, spent billions of dollars in federal, state, and 

local elections. This torrent of undisclosed money has 

corroded public confidence in elected officials

representing the States in Congress, the election 

process, and the very importance of voting, leading 

many Americans to believe that their individual votes 

cannot matter in the face of such massive 

contributions from a powerful few. The amici States 

have an interest in reestablishing and enforcing 
This Court should grant certiorari now and 

affirm the States’ power to take steps to ensure the 

integrity of the democratic process.

SUMMARY OF ARGUMENT

The amici States respectfully request that 

the Court grant the petition and hold that the 

contribution limits in the Federal Election Campaign 

Act, 52 U.S.C. § 30116, are consistent with the First 

Amendment as applied to organizations engaged in 

independent expenditures.

The pervasive and pernicious impact of the 

SpeechNow decision presents a matter of great 

importance affecting many States. SpeechNow rested 

on the premise “that independent expenditures do not 

corrupt or give the appearance of corruption as a 

matter of law[.]” Pet. App. 62a. Based on this 

proposition, the D.C. Circuit assumed that the 

government cannot have an “anticorruption interest 

in limiting contributions to independent expenditureonly organizations.” Pet. App. 62a. This Court has not 

yet decided whether limits on contributions to Super 

PACs are constitutionally valid, but several circuit 

courts have since adopted the reasoning of the D.C. 

Circuit in striking down State and local campaign 

finance laws that cap such contributions. Some States 

have also concluded that their existing laws may be 

unconstitutional in light of this precedent.
particularly pronounced impact on state and local 

elections, with Super PAC spending in such elections 

increasing exponentially over the last decade.

Combined with the lack of real-time 

transparency into the sources of contributions to 

Super-PACs, the magnitude of Super PAC spending 

has engendered a pervasive view in the public that 

elected officials and candidates for office are beholden 

to Super PAC donors. Americans have reached an 

overwhelming bipartisan consensus that donors’ 

ability to contribute unlimited sums to Super PACs 

can and does corrupt elections and elected officials. 

The American experience over the last ten years also 

shows that express advocacy by Super PACs for 

particular candidates is not independent (in 

appearance or in reality), undercutting SpeechNow’s 

justifications for removing limits on contributions to 

Super PACs.

A strong presumption also favors granting 

review of the Court of Appeals decision striking down 

a federal statute on First Amendment grounds. This 

Court consistently grants review of such decisions, 

even absent a circuit conflict, out of respect for 

Congress’s role as a co-equal branch of government.

This Court’s review is necessary to permit reasonable 

limits on contributions to Super PACs and begin to 

reverse the harm wrought on the public’s confidence 

in governmental integrity.
Great Importance

SpeechNow erroneously decided as a matter 

of law that the government does not have an 

“anti-corruption interest in limiting contributions 

to independent expenditure-only organizations.” 

Pet. App. 62a. The decision has caused a maelstrom of 

money to surge into Super PACs affecting elections at 

every level. But as explained below, removing limits 

to contributions invites corruption and the 

appearance of corruption, undermining SpeechNow’s 

reasoning. 

A. Unlimited Contributions to Super 

PACs Create a Pervasive Appearance of Corruption

The overwhelming majority of the public 

believes that unlimited contributions to Super PACs 

lead to corruption, a perception confirmed by real 

world experience.

Direct surveys of the electorate show that 

allowing unlimited contributions to Super PACs 

creates an appearance of corruption that corrodes 

public confidence in the integrity of elections and 

public officials. The perception of corruption is 

bipartisan and widely held. In a survey conducted by 

the Brennan Center for Justice focusing on Super 

PACs, 74% of Republicans and 73% of Democrats 

agreed that “let[ting] corporations, unions and people 

give unlimited money to Super PACs will lead to 
This widespread concern about the lack of 

contribution limits harms civic engagement. An 

alarming 26% of Americans report that they are less 

likely to vote because large donors to Super PACs have 

such outsized influence over elected officials.3 This 

demoralizing effect was particularly strong among 

less wealthy or less educated voters and among voters 

of color.4

The perception of corruption arises, in part, 

from wealthy donors’ use of Super PACS to funnel 

billions of dollars into elections. Since SpeechNow, 

just 11 individual donors have given a combined 

$1 billion to Super PACs, accounting for more than 

one-fifth of all contributions to Super PACs since 

2010.5 While the top 0.01% of the voting age 

population accounted for between 9% and 15% of total 

contribution dollars during the 1980s, by 2016, the 

share of total contributions from these wealthiest few 

 

1 Brennan Center for Justice, National Survey: Super 

PACs, Corruption, and Democracy (Apr. 24, 2012), 

https://bit.ly/3e9vcqs.

2 Id.

3 Id.

4 Id.

5 Michelle Ye Hee Lee, Eleven donors have plowed 

$1 billion into super PACs since they were created, Wash. Post, 

Oct. 26, 2018, https://wapo.st/3flV6sR.
executives, media magnates, and a casino mogul.8

The public’s perception that this onslaught of 

money buys undue influence is well-grounded. There 

have been several high-profile instances of admitted 

or perceived influence of donors to Super PACs over 

politicians. See Pet. at 21–23 (discussing the 

$1.5 million Greg Lindberg funneled to a Super PAC 

and the alleged bribery scheme involving a sitting 

U.S. Senator).

Lev Parnas and Igor Fruman present a highprofile example of the “kink in the system.”9 Their 

indictment alleges that the two businessmen wanted 

to promote their personal financial interests 

and sought to advance the political interest of a 

Ukrainian government official seeking to oust the 

U.S. ambassador to Ukraine. See Dkt. 1, Sealed 

Indictment, United States v. Parnas, 19-cr-725 

 

6 Expert Report of Adam Bonica, Ph.D., Patrick v. Interior 

Voters for John Coghill, Case No. 3AN-18-05726CI,

https://bit.ly/2BN7Qdi.

7 OpenSecrets.org, Super PACs: How Many Donors Give, 

https://bit.ly/38z8c34 (last visited July 20, 2020).

8 OpenSecrets.org, Top Individual Contributors: All 

Federal Contributions, https://bit.ly/2DczEIi.

9 Rosalind S. Helderman & Paul Sonne, ‘Once this is over, 

we’ll be kings’: How Lev Parnas worked his way into Trump’s 

world—and now is rattling it, Wash. Post, Jan. 18, 2020, 

https://wapo.st/3gEPiee.
direct access to the President. At one fundraising 

dinner, Parnas told the President that the U.S. 

ambassador to Ukraine disparaged him and 

advocated for her removal. The President ordered her 

dismissal at the dinner.10 Though this contribution 

received more attention than most, the core feature of 

their activity was sadly routine: To gain access to 

a politician, they made a large contribution to a 

purportedly independent Super PAC.

Other examples abound showing how the 

influence of Super PAC contributions promotes 

the appearance of corruption, including at the State 

and local level.11 These real-world examples of 

individuals using high-dollar contributions to gain 

access to public officials show just how wrong the 

D.C. Circuit was to assume that contributions to 

independent expenditure organizations cannot either 

corrupt or create an appearance of corruption as a 

matter of law.

 

10 Rosalind S. Helderman et al., Listen: Trump tells 

associates to ‘get rid of’ U.S. ambassador to Ukraine, Wash. Post, 

Jan. 25, 2020, https://wapo.st/3gwFi6o.

11 See, e.g., Pet. 21-23; Editorial, D.C. mayor’s allies 

wisely shut down FreshPAC, Wash. Post, Nov. 10, 2015, 

https://wapo.st/3e92S7J.
ance of Corruption

Super PACs have had a particularly outsized 

influence on state and local elections given the smaller 

dollars generally spent on such elections. Forward 

Majority, a pro-Democratic Super PAC, estimates 

that it takes $500,000 to successfully flip a 

competitive seat in a state legislature.12 As former 

FEC chairman Robert Lenhard said, “The ability to 

step in with a six- or seven-figure ad buy is going to be 

disproportionately effective on a local race.”13

Independent contributions and expenditures towards 

state races has increased every election cycle since the 

SpeechNow decision.14

This increase in Super PAC money is 

particularly pronounced in certain States. For 

example, independent expenditures in Colorado have

increased over 1000 percent over the last decade, from 

 

12 Deniz Çam, Ahead of 2020, Democratic Billionaire 

Donors Bet On A Young Super PAC To Win State Races, Forbes, 

Nov. 4, 2019, https://bit.ly/2ZPZVUD.

13 Heather Haddon, Super PACs Target Local Races, 

Wall Street J., Oct. 18, 2015, https://on.wsj.com/3iDiofD.

14 See JT Stepleton, Independent Spending Overview, 

2015 and 2016, FollowTheMoney.org, Feb. 14, 2018, 

https://bit.ly/2Cjvi1x.
just over $4 million to over $29 million; in Michigan, 

from approximately $7.8 million to $32.4 million; in 

Missouri, from $3.3 million to $15.2 million; in North 

Carolina, from $2.6 million to $18.7 million; in 

Oklahoma, from $ 1.4 million to $18.1 million; and 

in Washington, from $5.8 million to $ 24.2 million.16

Records for the most expensive races are broken 

regularly by Super PACs in state races, with over 

$2.2 billion raised in campaign contributions for state 

offices.17 Super PACs have raised and spent 

enormously in state races for governor,18 attorney 

 

15 Stacy Montemayor, 10 years after Citizens 

United: State races transformed by explosive growth in 

independent spending, FollowTheMoney.org, Jan. 21, 2020, 

https://bit.ly/3e3yuf2.

16 Id.; see also Stepleton supra note 14.

17 Geoff Mulvihill, AP: Political money in state-level 

campaigns exceeds $2B, Associated Press, Nov. 1, 2018, 

https://bit.ly/2O8eayE; see, e.g., Shannon Mullane, Super PAC 

money floods into Colorado state races, Colo. Indep., Aug. 18, 

2018, https://bit.ly/3efccXD; Alex Kotch, Wealthy Donors and 

Fossil Fuel Interests Pump Millions into Super PACs for 2020 

Elections, Ctr. For Media & Democracy’s PR Watch, Feb. 28, 

2020, https://bit.ly/3iGmBiL.

18 Sam Karlin, Super PACs are pouring millions of 

dollars into Louisiana governor’s race to unseat Gov. Edwards, 

The Advocate, Aug. 3, 2019, https://bit.ly/38C5MRr.
PACs raise and spend has dramatically increased in 

big city mayors’ campaigns in cities like Chicago, 

Newark, Boston, and Los Angeles.24 For example, 

independent expenditures in Seattle mayoral races 

have quintupled since 2009 and almost doubled from 

2013 to 2017.25

 

19 Zaid Jilani, Real Estate Tycoon Dumps Money Into 

Super PAC to Stop Zephyr Teachout’s Bid for New York Attorney 

General, The Intercept, Sept. 11, 2018, https://bit.ly/2VYneKK.

20 Brady Dennis, Super PACs, donors turn sights 

on judicial branch, Wash. Post, Mar. 29, 2012, 

https://wapo.st/2ZaVMLV.

21 Mary Winter, Super PACs at the State Level: 

A Different Story, Colum. Journalism Rev., Apr. 16, 2012, 

https://bit.ly/3f6ylZA.

22 Jack Healy, School Board Recall Vote in Colorado Tests 

Conservative Policies, N.Y. Times, Oct. 28, 2015, 

https://nyti.ms/3gIO8ON.

23 Dan Boyd, Out-of-state PACs pour money into 

New Mexico, Las Cruces Sun News, Oct. 9, 2018, 

https://bit.ly/3e5Locs.

24 Sandra Svoboda & Mike Wilkinson, Donor database: 

Detroit mayoral race attracted big-time Super PAC money for 

Mike Duggan, Ctr. for Mich./Bridge Magazine, July 22, 2014 

(updated Jan. 20, 2019), https://bit.ly/3gFhehT.

25 Polly Grow & Bob DeWeese, Seattle Ethics & Election 

Comm’n, 2017 Election Report 15 (Mar. 9, 2018), 

https://bit.ly/38ARMYb.
candidate was the beneficiary of 465 times more 

support from Super PACs than his opponent, though 

he raised less in direct contributions.

27 State judicial 

offices are not immune from outsized Super PAC 

donations either. In 2016, billionaires Bill Gates, Paul 

Allen and Ken Fisher each poured hundreds of 

thousands of dollars to a Super PAC supporting a 

sitting Washington Supreme Court justice’s opponent 

or a Super PAC seeking to unseat that justice.

28 Super 

PACs ended up spending over $1 million on a single 

Washington Supreme Court race—with over 90% 

spent on that single candidate.29

The upcoming 2020 elections are expected to 

see unprecedented levels of Super PAC contributions 

as small pools of billionaires prepare to fund hundreds 

 

26 Id. at 1.

27 Lester Black, Fact Check: Big Business Super PACs 

Are Outspending Labor 4-1 in City Elections, The Stranger, 

Oct. 29, 2019, https://bit.ly/3edkbEN.

28 Jim Brunner & Steve Miletich, Bill Gates, others 

donate nearly $1M to defeat Supreme Court Justice Wiggins, 

Seattle Times, Oct. 16, 2016 (updated Nov. 14, 2016), 

https://bit.ly/2O8O1zO.

29 See Pub. Disclosure Comm’n, Public Disclosure 

Reporting Form: Citizens for Working Courts Enterprise 

Washington (Oct. 26. 2016), https://bit.ly/38AXbyr; Pub. 

Disclosure Comm’n, Public Disclosure Reporting Form: Judicial 

Integrity WA PAC (Oct. 19, 2016), https://bit.ly/2O7TRl2.
organizations.31 As Donald Trump’s former campaign 

manager, Corey Lewandowski, stated: “Candidate 

committees have almost become irrelevant.” “If you 

can write a larger, more substantial check, there’s no 

reason to give to candidates,” he continued. 

“Everything you want to do, you can do through a PAC 

or another entity. It makes the behind-the-scenes 

players much more influential than they ever were.”32

The proportion of Super PAC money donated by 

a small number of super-wealthy donors is also more 

pronounced in state and local elections. For example, 

in 2018, only 11 donors accounted for 92% of all 

donations to Connecticut Super PACs, supporting 

candidates for Connecticut state and local offices.33 In 

 

30 Karl Evers-Hillstrom & Tatyana Monnay, Party-Tied 

super PACs amassing unprecedented sums for congressional 

elections, OpenSecrets.org, Apr. 22, 2020, https://bit.ly/2Z7Cbfo.

31 See OpenSecrets.org, Races in Which Outside 

Spending Exceeds Candidate Spending, 2020 Election Cycle, 

https://bit.ly/2Z8vJEU (listing 114 electoral races in 2012 

through 2018 in which Super PAC spending exceeding that of all 

candidates in the race).

32 Alan Suderman & Ben Wieder, ‘Citizens United’ 

Ruling Helped Unions Win State Elections, Ctr. For Public 

Integrity, Nov. 14, 2013 (updated May 19, 2014), 

https://bit.ly/3fglSCI.

33 Cheri Quickmire, Tom Swan & Michael Sullivan, 

Common Cause Conn. & Conn. Citizen Action Group, Who Is 
PACs substantially outpaces the rise of direct 

contributions to candidates.

35 Even a tenfold increase 

in contribution limits would hardly put a candidate on 

equal footing with a Super PAC that receives 

contributions of hundreds of thousands or even 

millions of dollars. Ultimately, the distorting effects of 

Super PAC money drowns out the voices of voters and 

candidates and damages public confidence in the 

integrity of our election system.

C. Lack of Transparency of Massive 

Contributions to Super PACs 

Exacerbates the Risk and Appearance of Corruption

The lack of real-time transparency into sources 

of Super PAC contributions increases the risk and 

appearance of corruption created by the lack of 

contribution limits. Super PACs increasingly report 

donations from “dark groups” that are not themselves 

 

Buying Our Election? A Pre-Election Guide to Connecticut Super 

PACs (Oct. 19, 2018), https://bit.ly/2ZeTnzX.

34 Robert Moilanen, Mega-donor political cash swamps 

state elections, Mpls. Star Trib., Sept. 29, 2019, 

http://strib.mn/3e6ls0d.

35 Stepleton supra note 14; Idrees Kahloon, Outside 

groups’ influence on 2016 election grows, super PAC filings show, 

Sunlight Found., Aug. 3, 2015, https://bit.ly/38TD6U7.
According to a study by the Brennan Center for 

Justice, in state and local elections only 29% of outside 

spending was fully transparent in 2014, sharply down 

from 76% in 2006.38 Donations from dark groups to 

Super PACs increased by 49 times between 2006 and 

2014, from less than $190,000 to over $9.2 million.39

Eleven of the top 15 dark money groups spent heavily 

on state campaigns from 2010 through 2016, and 

dramatically increased their spending in the same 

timeframe.40 As Chris Herstam, a former Republican 

majority whip in the Arizona House of Representatives, put it: “In my 33 years in Arizona politics 

and government, dark money is the most corrupting 

influence I have seen.”41

This increase in out-of-state dark money by 

Super PACs has been particularly dramatic in certain 

state and local elections. For example, Arizona saw a 

nearly three-hundred fold increase in Super PAC dark

 

36 Chisun Lee et al., Brennan Center for Justice, Secret 

Spending in the States (2016), https://bit.ly/3hpOiem.

37 Id.

38 Id.

39 Id.

40 JT Stepleton, Darkness on the Edge of Town: National 

Dark Money Targets States, FollowTheMoney.org, Nov. 2, 2018, 

https://bit.ly/31YRAR8.

41 Lee supra note 36.
Super PACs funded by out-of-state donors are 

likely to put their donors’ priorities ahead of the needs 

of in-state residents, thus skewing the relationship 

between representatives and constituents.44 In the 

2012 Utah attorney general election, payday loan 

companies worked with a campaign to use a web of 

generically-named PACs and nonprofits to obscure 

approximately $450,000 in donations for nominally 

independent election ads.45 The lenders sought 

protection from newly toughened consumer rights 

rules.46 In Wisconsin, an out-of-state mining company 

in 2012 secretly poured $700,000 into ads attacking 

 

42 Id.

43 People for the American Way Found. & OSPIRG 

Found., Outside Spending, Outsized Influence: Big and Secret 

Money in Oregon in the 2012 Elections, https://bit.ly/2CiKcVM.

44 Theodoric Meyer, In Wisconsin, Dark Money Got a 

Mining Company What It Wanted, ProPublica, Oct. 14, 2014, 

https://bit.ly/3iI1I6C; Nicholas Confessore, A Campaign Inquiry 

in Utah Is the Watchdogs’ Worst Case, N.Y. Times, Mar. 18, 2014, 

https://nyti.ms/2VXLmNJ; Seattle Times Staff, AG Says more 

campaign money hidden in I-522 food-label fight, Seattle Times, 

Nov. 20, 2013, https://bit.ly/2BRPZBR.

45 Utah House of Representatives, Report of the Special 

Investigative Committee 2 (Mar. 11, 2014), https://bit.ly/3eccD4Y; 

Robert Gehrke, More Swallow emails recovered, probe’s price 

nears $4M, Salt Lake Trib., Mar. 8, 2014, https://bit.ly/2AEdJZE.

46 Report of the Special Investigative Committee at 8-9, 

69-70 supra note 45.
integrity of, and public confidence, in our democratic 

process. As illustrated above, Super PACs can and do 

exacerbate corruption and the appearance of 

corruption.

II. The Question Presented Affects Many 

States

The SpeechNow decision impacts many, if not 

all, States because Super PAC contributions influence 

and impact federal elections to elect representatives 

of States in Congress. Turning to 2020, for example, 

Super PACs have raised significant sums with eyes 

towards Senate races in Arizona, Colorado, Iowa, 

Maine, and North Carolina. In this election cycle, the 

Senate Majority PAC has raised over $118 million and 

the Senate Leadership Fund over $71 million—

signaling huge amounts that may be spent in Senate 

races.48 Likewise, Super PACs focused on House races 

have raised tens of millions, targeting some three 

dozen congressional districts across the country.49

SpeechNow has already had far-reaching 

impact beyond federal campaign finance law. To the 

detriment of States and municipalities seeking to 

 

47 Meyer supra note 44.

48 OpenSecrets.org, Super PACs, https://bit.ly/3gPCT6Y 

(last visited July 20, 2020).

49 Kenneth P. Doyle, Super PACs, Party Committees Load 

Up for Congressional Campaigns, Bloomberg Gov’t, Apr. 22, 

2020, https://bit.ly/3gVMPw4.
conflict with SpeechNow.

The Ninth Circuit, for example, cited 

SpeechNow in striking down a city ordinance that 

limited contributions to political action committees 

using funds for independent expenditures. See Long 

Beach Area Chamber of Commerce v. City of Long 

Beach, 603 F.3d 684, 698-99 (9th Cir. 2010)

(“[B]ecause Citizens United holds that independent 

expenditures do not corrupt or give the appearance of 

corruption as a matter of law, then the government 

can have no anti-corruption interest in limiting 

contributions to independent expenditure-only 

organizations.” (quoting SpeechNow.org, 599 F.3d at 

696 (alteration by Long Beach))).

One year later, the Seventh Circuit in 

Wisconsin Right to Life followed SpeechNow’s 

reasoning to hold that Wisconsin’s statute—limiting 

contributions to state and local candidates, political 

parties, and political committees to a “total of $10,000 

in any calendar year”—was unconstitutional. 

Wisc. Right to Life State Political Action Comm. v. 

Barland, 664 F.3d 139, 143 (7th Cir. 2011) (quoting 

Wis. Stat. § 11.26(4)). The Seventh Circuit agreed 

with SpeechNow’s “inexorabl[e]” conclusion that 

“contributions to groups that make only independent 

expenditures also cannot corrupt or create the 

appearance of corruption.” Id. at 154 (quoting 

SpeechNow.org, 599 F.3d at 694).
making of contributions of greater than $5,000 to 

political committees); Texans for Free Enter. v. 

Tex. Ethics Comm’n, 732 F.3d 535, 538 (5th Cir. 2013)

(holding that a state law ban on corporate 

contributions cannot be applied to independent 

expenditure committees); Dkt. 23, Fund for Jobs, 

Growth, & Security v. N.J. Election Law Enforcement 

Commission, No. 13-2177 (D.N.J. July 11, 2013) 

(permanently enjoining enforcement of the 

contribution limit to political and continuing political 

committees under New Jersey law against the 

plaintiff).50

SpeechNow has hampered enforcement of and 

innovation in State campaign finance regulations 

even where a court has not struck them down. For 

example, Massachusetts’s Office of Campaign & 

Political Finance (OCPF) issued an interpretive 

bulletin providing guidance to independent 

expenditure groups shortly after SpeechNow. 

Explained OCPF, “[G]iven Citizens United and 

SpeechNow, independent expenditure-only 

committees may raise unlimited contributions 

from individuals, political committees, and 

 

50 A Fourth Circuit holding resembling SpeechNow came 

prior to the D.C. Circuit’s decision. See N.C. Right to Life, Inc. v. 

Leake, 525 F.3d 274, 308 (4th Cir. 2008) (holding that North 

Carolina did not make a sufficient evidentiary showing to justify 

its limit on contributions to Super PACs).
Commission issued an advisory opinion regarding 

Alaska Statute § 15.13.070, which limits the amount 

of money individuals or groups can contribute to 

independent expenditure groups during an election 

cycle.51 Concerning the contribution limits, the 

Commission recommended allowing contribution 

activity that violated the statute, reasoning that other 

courts had “invalidated other states’ restrictions on 

amounts of contributions to organizations that make 

only independent campaign expenditures.” State of 

Alaska, Pub. Offices Comm’n, Advisory Opinion 

Request AO 12-09-CD, at 7-8 (May 24, 2012) (footnote 

omitted), https://bit.ly/38KIYyT (citing inter alia Long

Beach Area Chamber of Commerce, 603 F.3d at 687; 

Wisc. Right to Life State Political Action Comm., 

664 F.3d at 154-55).

Likewise, New Hampshire’s Attorney General’s 

Office issued an opinion that outside groups could 

raise unlimited funds and use the proceeds to support 

or oppose a candidate. Previously, donations to the 

groups were capped at $5,000. Acknowledging that 

SpeechNow was not controlling authority in a 

 

51 The Court recently granted certiorari, vacated, and 

remanded Thompson v. Hebdon, 140 S. Ct. 348 (2019), for the 

Court of Appeals to consider whether Alaska’s campaign 

contribution limits to candidates and election-oriented groups 

were too restrictive and not consistent with the Court’s 

precedents. The Court did not address the legitimacy of a 

contribution limit in and of itself.
against enforcing New Hampshire’s contribution 

limits for political committees making independent 

expenditures. See Advisory Letter to New Hampshire 

Secretary of State William M. Gardner, Re: Effect of 

Citizens United Decision on Enforcement of RSA 664:4 

(Prohibited Political Contributions) Regarding 

Political Committees (Aug. 1, 2012).

52

States play a vital role as laboratories of 

democracy, including by trying different ideas for 

campaign finance regulation. E.g., Ariz. State 

Legislature v. Ariz. Indep. Redistricting Comm’n, 

135 S. Ct. 2652, 2673 (2015) (“This Court has long 

recognized the role of the States as laboratories for 

devising solutions to difficult legal problems.” 

(internal quotation marks omitted)); see also United 

States v. Lopez, 514 U.S. 549, 581 (1995) (Kennedy, J., 

concurring) (“[T]he States may perform their role 

as laboratories for experimentation to devise 

various solutions where the best solution is far from 

 

52 Following SpeechNow, State limitations on corporate 

contributions were either repealed or struck down by courts in 

fourteen states: Alaska, Arizona, Colorado, Connecticut, Iowa, 

Kentucky, Minnesota, Montana, North Carolina, South Dakota, 

Tennessee, Texas, West Virginia, and Wisconsin. See Nat’l 

Conference of State Legislatures, Citizens United and the States

(July 21, 2016), https://bit.ly/3gDYWNX. State limitations on 

union contributions were struck down or repealed in at least 

seven states: Alaska, Arizona, Colorado, North Carolina, South 

Dakota, Texas, and Wisconsin. Id.
federal, the question presented affects many, if not 

all, States through elections for federal offices 

representing States and State regulations for Super 

PAC contributions. On a question of such importance 

that affects our democracy so fundamentally, it 

should be this Court, not the D.C. Circuit, that has 

the final say.

III. A Strong Presumption Favors Review 

of the Court of Appeals Decision 

Invalidating a Federal Statute on First 

Amendment Grounds

As Petitioners have demonstrated, this Court 

employs a strong presumption favoring review of 

decisions invalidating federal statutes. Where a lower 

court has invalidated a federal statute on First 

Amendment grounds, the Court has “repeatedly” and 

consistently granted review “‘even in the absence of a 

circuit conflict.’ Pet. for Cert. 15, Barr v. Am. Assoc. of 

Political Consultants, Inc., No. 19-631 (Nov. 14, 2019), 

cert. granted, 140 S. Ct. 812 (2020).” Pet. 10; see also

Iancu v. Brunetti, 139 S. Ct. 2294, 2298 (2019)

(observing that “when a lower court has invalidated a 

federal statute,” the Court “usual[ly]” grants 

certiorari). This standard approach is consistent with 

the Court’s presumption of constitutionality and the 

respect accorded to Congress. See United States v. 

Morrison, 529 U.S. 598, 607 (2000) (“Due respect for 

the decisions of a coordinate branch of Government 

demands that we invalidate a congressional 
called upon to perform” (quoting Blodgett v. Holden, 

275 U.S. 142, 148 (1927))). The Court should follow its 

“usual” practice here and grant certiorari.

CONCLUSION

The petition for a writ of certiorari should be 

granted.

RESPECTFULLY SUBMITTED.

ROBERT W. FERGUSON

 Attorney General

NOAH G. PURCELL

 Solicitor General

 Counsel of Record

TERA M. HEINTZ

 Deputy Solicitor General

CRISTINA SEPE

 Assistant Attorney General

1125 Washington Street SE

Olympia, WA 98504-0100

360-753-6200

July 22, 2020 noah.purcell@atg.wa.gov

Philip J. Weiser

Attorney General of 

Colorado

William Tong

Attorney General of 

Connecticut
Attorney General for 

the District of Columbia

Clare E. Connors

Attorney General of 

Hawaii

Kwame Raoul

Attorney General of 

Illinois

Aaron M. Frey

Attorney General of 

Maine

Brian E. Frosh

Attorney General of 

Maryland

Maura Healey

Attorney General of 

Massachusetts

Attorney General of 

Minnesota

Hector Balderas

Attorney General of 

New Mexico

Josh Shapiro

Attorney General of 

Pennsylvania

Peter F. Neronha

Attorney General of 

Rhode Island

Thomas J. Donovan, Jr.

Attorney General Of 

Vermont

Mark R. Herring 

Attorney General of 

Virginia