No. 19-1398 

IN THE

Supreme Court of the United States 

TED LIEU, UNITED STATES CONGRESSMAN, ET AL., 

Petitioners, 

v. 

FEDERAL ELECTION COMMISSION, 

Respondent. 

On Petition for a Writ of Certiorari 

to the United States Court of Appeals 

for the District of Columbia Circuit 

BRIEF OF AMICUS CURIAE 

FORMER FEC COMMISSIONER ANN M. RAVEL 

IN SUPPORT OF PETITIONERS 

Emanuel Grillo

David M. Howard 

BAKER BOTTS L.L.P. 

30 Rockefeller Plaza 

New York, NY 10112 

Stephanie F. Cagniart

Counsel of Record 

David B. Goode 

BAKER BOTTS L.L.P. 

98 San Jacinto Blvd. 

Suite 1500 

Austin, Texas 78701 

(512) 322-2537 

stephanie.cagniart@bakerbotts.com 

Counsel for Amicus Curiae 
(ii)

TABLE OF CONTENTS 

Table of Authorities ............................................................ iii

Interest of Amicus Curiae .................................................. 1

Summary of Argument ........................................................ 2

Argument .............................................................................. 3

I. The Increase in Dark Money in Elections 

Following SpeechNow Has Subverted the 

FEC’s Ability to Monitor and Enforce 

Compliance with FECA ........................................... 3

A. As the agency charged with enforcing 

FECA, the FEC relies on disclosures to 

perform its essential functions. ......................... 5

B. SpeechNow fueled an extraordinary rise 

in dark-money spending that overwhelms 

the FEC’s monitoring and enforcement 

capabilities. .......................................................... 7

i. SpeechNow led to an enormous 

increase in contributions to and thus 

expenditures by Super PACs. ..................... 7

ii. Much of this massive increase in 

contributions comes from “dark 

money” and undermines the FEC’s 

ability to enforce FECA. ........................... 10

C. SpeechNow has exacerbated the danger of 

foreign nationals attempting to influence 

U.S. elections. ................................................... 12

II. SpeechNow Enabled Activities Widely Viewed 

as Corrupt that the FEC Cannot Prevent........... 17

Conclusion ........................................................................... 23
(iii)

TABLE OF AUTHORITIES 

Page(s) 

CASES

Bluman v. Federal Election Commission, 

800 F. Supp. 2d 281 (D.D.C. 2011), aff’d, 

565 U.S. 1104 (2012) ..................................................... 13 

Buckley v. Valeo, 

424 U.S. 1 (1976) ............................................ 6, 12, 16, 22 

Citizens United v. Federal Election 

Commission, 

558 U.S. 310 (2010) ...................................... 12, 13, 17, 18 

Davis v. Federal Election Commission, 

554 U.S. 724 (2008) ....................................................... 16 

Evans v. United States, 

504 U.S. 255 (1992) ....................................................... 18 

Federal Election Commission v. National Right 

to Work Committee, 

459 U.S. 197 (1982) ......................................................... 5 

Galliano v. United States Postal Service, 

836 F.2d 1362 (D.C. Cir. 1988) ...................................... 5 

Libertarian National Committee, Inc. v. Federal 

Election Commission, 

924 F.3d 533 (D.C. Cir.) (en banc), judgment 

entered, 771 F. App’x 8 (D.C. Cir.), cert. 

denied, 140 S. Ct. 569 (2019) ..................................... 5, 22 

SpeechNow.org v. Federal Election 

Commission, 

599 F.3d 686 (D.C. Cir. 2010) .............................. passim 

United States v. Internet Research Agency, LLC, 

No. 1:18-cr-00032-DLF, 2018 WL 914777 

(D.D.C. Feb. 16, 2018) .................................................... 6 
iv 

United States v. Michel, 

No. 1:19-cr-00148-CKK (D.D.C. May 2, 2019) ........... 13 

United States v. Parnas, 

No. 1:19-cr-00725-JPO (S.D.N.Y. Oct. 9, 2019) ......... 14 

STATUTES

52 U.S.C. § 30101(8)(A) ........................................................ 8 

52 U.S.C. § 30101(9)(A) ........................................................ 8 

52 U.S.C. § 30101(17) ........................................................7, 8 

52 U.S.C. § 30104 ............................................................. 6, 10 

52 U.S.C. § 30106(b)(1) ......................................................... 6 

52 U.S.C. § 30107(a)(9) ......................................................... 6 

52 U.S.C. § 30109 .................................................................. 6 

52 U.S.C. § 30116(a)(1)(C) ................................................... 7 

52 U.S.C. § 30121(a) ........................................................... 13 

Bipartisan Campaign Reform Act of 2002, 

Pub. L. 107-155, 116 Stat. 81 ......................................... 5 

REGULATION

11 C.F.R. § 104.3 ................................................................... 6 

LEGISLATIVE MATERIALS

Citizens United at 10: The Consequences for 

Democracy and Potential Responses by 

Congress: Hearing Before the Subcomm. on 

Const., Civil Rights & Civil Liberties of the H. 

Comm. on the Judiciary, 116th Cong. (2020) ........... 20 

Securing U.S. Election Infrastructure and 

Protecting Political Discourse: Hearing 

Before the Subcomm. on Nat’l Sec. of the H. 

Comm. on Oversight & Reform, 116th Cong. 

(2019) .............................................................................. 13 
v 

Taking Back Our Democracy: Responding to 

Citizens United and the Rise of Super PACs, 

Hearing Before the Subcomm. on Const., Civil 

Rights & Human Rights of the S. Comm. on 

the Judiciary, 112th Cong. (2012) .............................. 16 

ADMINISTRATIVE MATERIALS

Campaign Finance Statistics, 

Federal Election Commission ....................................8, 9 

Campaign Finance Statistics – Summary of PAC 

Activity January 1, 2015 Through December 

31, 2016, Federal Election Commission (Apr. 7, 

2017) ................................................................................. 9 

Campaign Finance Statistics – Summary of PAC 

Activity: January 1, 2019 Through March 31, 

2020, Federal Election Commission (May 8, 

2020) ................................................................................. 9 

Campaign Finance Statistics – Summary of PAC 

Activity Through December 31, 2008, Federal 

Election Commission ..................................................... 9 

Federal Election Commission, Advisory Opinion 

2010-11 (Commonsense Ten) (July 22, 2010) .......... 7, 20 

Federal Election Commission, MUR 7122 

(American Pacific International Capital, 

Inc.) (Mar. 8, 2019) ....................................................... 14 

Mission and History, 

Federal Election Commission ....................................... 5 

Spending Data, 

Federal Election Commission ..................................... 10 
vi 

OTHER AUTHORITIES

Albert W. Alschuler, Limiting Political 

Contributions After McCutcheon, Citizens 

United, and SpeechNow, 67 Fla. L. Rev. 389 

(2015) .............................................................................. 18 

Albert W. Alschuler et al., Why Limits on Contributions to Super PACs Should Survive Citizens United, 86 Fordham L. Rev. 2299 (2018) ......... 17

Americans’ Views on Money in Politics, N.Y. 

Times (June 2, 2015) ..................................................... 21 

Andrea Seabrook, Big Political Donors Shy Away 

From Public Scrutiny, NPR (June 20, 2012, 

3:04 AM) ........................................................................ 12 

Ann M. Ravel, Disclosure and Public Confidence, 

34 Yale L. & Pol’y Rev. 493 (2016) ................................ 6 

Ann Ravel, A New Kind of Voter Suppression in 

Modern Elections, 49 U. Memphis L. Rev. 

1019 (2019) ..................................................................... 11 

Anna Massoglia, Ctr. for Responsive Politics,

‘Dark Money’ in Politics Skyrocketed in the 

Wake of Citizens United, OpenSecrets (Jan. 

27, 2020, 12:56 PM) ....................................................... 11 

Beth Reinhard & Christopher S. Stewart, Some 

Candidates, Super PACs Draw Closer, Wall 

St. J. (Oct. 25, 2015, 6:12 PM) ...................................... 18 

Bradley A. Smith, Disclosure in a Post-Citizens 

United Real World, 6 U. St. Thomas J.L. & 

Pub. Pol’y 257 (2012) .................................................... 15 

Bradley Jones, Most Americans Want to Limit 

Campaign Spending, Say Big Donors Have 

Greater Political Influence, Pew Research 

Ctr. (May 8, 2018) ......................................................... 21 
vii 

Ctr. for Responsive Politics, Races in Which 

Outside Spending Exceeds Candidate 

Spending, 2016 Election Cycle, OpenSecrets ........... 10 

Dan Eggen, Obama, in a switch, Endorses ProDemocratic Super PAC, Wash. Post (Feb. 7, 

2012) ............................................................................... 19 

Daniel B. Tokaji & Renata E.B. Strause, The 

New Soft Money (2014) ................................................ 19 

Erik Ospal, Poll: Super PACs Leave Americans 

Less Likely to Vote, Brennan Ctr. for Justice 

at N.Y.U. (Apr. 24, 2012) ............................................. 20 

For Sale: Congress, Rasmussen Reports (June 

26, 2017) ......................................................................... 21 

Gian Gualco-Nelson, Note, Putting Names to 

Money: Closing Disclosure Loopholes, 71 

Hastings L.J. 1181 (2020) ............................................ 11 

Ian Vandewalker, Brennan Ctr. for Justice at 

N.Y.U., Outside Spending and Dark Money in 

Toss-Up Senate Races (Oct. 9, 2014) .......................... 11 

Ian Vandewalker, Since Citizens United, a Decade 

of Super PACs, Brennan Ctr. for Justice at 

N.Y.U. (Jan. 14, 2020) .................................................. 10 

Jason M. Breslow, Trevor Potter: The Political 

Reality Citizens, Frontline (Oct. 30, 2012) ................ 20 

Michelle Ye Hee Lee, Trump Slammed 

Opponents for Being in ‘Cahoots’ with Super 

PACs. Now, He’s Endorsed a Group 

Supporting Him, Wash. Post (May 8, 2019) ............. 19 
viii 

Remarks of Commissioner Ellen L. Weintraub, 

How Our Broken Campaign Finance System 

Could Allow Foreign Governments to Buy 

Influence in Our Elections and What We Can 

Do About It (July 19, 2017) .......................................... 14 

Richard Briffault, Super PACs, 96 Minn. L. Rev. 

1644 (2012) ..................................................................... 10 

Richard Hasen, Of Super PACs and Corruption, 

Politico (March 22, 2012 6:13 AM) .............................. 12 

Richard L. Hasen, Super Pac Contributions, 

Corruption, and the Proxy War Over 

Coordination, 9 Duke J. Const. L. & Pub. 

Pol’y 1 (2014) ................................................................. 12 

Trevor Potter: The Political Reality Citizens, 

Frontline (Oct. 30, 2012) .............................................. 20 
(1)

INTEREST OF AMICUS CURIAE1

Ann M. Ravel (“Amicus”) is a former commissioner of 

the Federal Election Commission (“FEC”), serving from 

2013 until 2017. Amicus was Chair of the FEC in 2015 and 

Vice Chair in 2014. Prior to her service at the FEC, Amicus served as Chair of the California Fair Political Practices Commission. She has lectured at the University of 

California Berkley School of Law and published extensively on issues of campaign finance. 

Petitioners ask this Court to review a fundamental aspect of campaign finance law: the constitutionality of contribution limits to political committees that make only independent expenditures, known as Super PACs, following 

the D.C. Circuit’s decision in SpeechNow.org v. FEC, 599 

F.3d 686 (D.C. Cir. 2010). As an FEC commissioner for 

five years after SpeechNow was decided, Amicus possesses firsthand experience regarding how that decision 

diminished the FEC’s ability to ensure transparency in 

federal elections and to enforce and administer federal 

campaign finance laws. Amicus submits this brief to share 

these insights with the Court and supports petitioners’ request that the Court grant the writ of certiorari to address 

the Question Presented. Resolving that issue of constitutional law is essential to restoring and preserving the integrity of fair elections in this country and cannot be 

avoided. 

1

 All parties received notice and have consented to the filing of this 

brief. In accordance with Rule 37.6, no counsel for any party has authored this brief in whole or in part, and no person or entity, other 

than Amicus or their counsel, has made a monetary contribution to the 

preparation or submission of this brief. 
2 

SUMMARY OF ARGUMENT 

The D.C. Circuit’s decision in SpeechNow.org v. FEC, 

599 F.3d 686 (D.C. Cir. 2010) opened the door to unlimited, 

and often anonymous, contributions of money into federal 

election cycles, thereby undermining the FEC’s ability to 

monitor and enforce campaign finance laws, and by extension, our political system and voters’ faith in it. 

The focus on expenditures rather than on contributions in SpeechNow contravened both the finely-tuned 

Congressional system of campaign-finance laws and this 

Court’s extensive precedents regarding contributions. See 

Pet. 13-24. Consequently, dark money has flooded the federal election system resulting in difficult-to-trace, multibillion dollar increases that render monitoring and enforcement by the FEC—the sole agency tasked with civil 

enforcement of federal campaign-finance law—difficult, if 

not impossible. Under the Federal Election Campaign Act 

(“FECA”), Congress enacted a $5,000 limit on contributions to political committees, including Super PACs, as 

part of a comprehensive and carefully-designed statutory 

regime under FECA. But now, for more than a decade, the 

FEC has declined to enforce that statutory limitation as a 

result of the D.C. Circuit’s opinion in SpeechNow. 

The explosion of Super PAC contributions in the decade since SpeechNow has proven its premises and rationale to be incorrect. Dark money, in the form of largely 

untraceable and often substantial contributions to Super 

PACs, harms the FEC’s ability to identify improper coordination. Entities such as LLCs and non-profits, who are 

not required to disclose their contributors, have funneled 

billions of dollars into Super PACs that are only required 

to report their immediate contributors. The true donors 

hide behind the contributing entity. The integrity of our 

electoral system suffers as a result. 
3 

Unless this Court takes up this issue and addresses the 

infirmities of SpeechNow, foreign powers will also continue to have the ability to exploit the federal electoral system despite the statutory FECA framework. Time and 

again, foreign nationals have tried to influence U.S. elections, including through contributions to Super PACs 

through dark money entities. And Americans have rapidly 

begun to lose faith in democracy since 2010 as the system 

succumbs to the “appearance of corruption” under the 

weight of these limitless donations by a small and unrepresentative portion of the population (in addition to foreign 

influence). 

Disclosure cannot solve these problems. Therefore, to 

perform its essential duties in enforcing this nation’s campaign finance laws, the FEC must be able to enforce the 

statutory contribution limits to Super PACs. Only this 

Court can restore the FEC’s authority to properly enforce 

campaign finance laws by reconsidering and invalidating 

SpeechNow’s failure to address contributions rather than 

expenditures. 

ARGUMENT 

I. THE INCREASE IN DARK MONEY IN ELECTIONS FOLLOWING SPEECHNOW HAS SUBVERTED THE FEC’S 

ABILITY TO MONITOR AND ENFORCE COMPLIANCE 

WITH FECA

The D.C. Circuit reasoned in SpeechNow that contributions to political action committees (“PACs”) that make 

only independent expenditures “cannot corrupt or create 

the appearance of corruption.” 599 F.3d at 693-694. This 

conclusion rested, in part, on the assumptions that “who is 

speaking about a candidate and who is funding that 

speech” would be disclosed, and that this transparency 

would “deter[] and help[] expose violations of other campaign finance restrictions, such as those barring contributions from foreign corporations and individuals.” Id. at 
4 

698. Based on this logic, the D.C. Circuit invalidated a contribution limit that had been in place since the Watergate 

scandal. 

Yet the D.C. Circuit cited no empirical evidence in support of its assumptions, and a decade after SpeechNow, it 

is apparent that those assumptions were wrong. The FEC 

pointed this out in its brief to the D.C. Circuit in SpeechNow: “Real-world evidence about political fundraising 

confirms that unlimited contributions to groups for independent spending raise the danger of corruption and its 

appearance. A victory for appellants would undermine 

FECA’s anti-corruption purpose and have far-reaching 

consequences.” Br. for Appellee at 13, SpeechNow.org v. 

FEC, 599 F.3d 686 (D.C. Cir. 2010) (No. 08-5223). 

Those consequences have become more “far-reaching” 

than previously imagined. Over the past decade, donors’ 

ability to make unlimited contributions to Super PACs has 

resulted in the influx of largely-untraceable additional billions of dollars into federal elections. But because Super 

PACs are only required to disclose the identity of their immediate donors, true donors can mask their identities using intermediary entities. The FEC, which relies on disclosures, is largely unable to monitor and enforce compliance with federal campaign finance law against Super 

PACs that accept such donations. This contribution intermediation has led to enormous increase of “dark money” 

in federal elections and has created a vehicle for foreign 

nationals to make illicit contributions to support or oppose 

candidates for federal office. 

Unless and until SpeechNow is overturned, the FEC 

will continue to be unable to monitor meaningfully these 

extraordinary monetary contributions and expenditures 

and ensure that Super PACs, their donors, and the candidates they support comply with federal campaign-finance 

law. Consequently, voters will not have the essential 
5 

information they need to make informed choices at the ballot box. The integrity of our electoral system will be subject to greater risk and the public’s faith in our electoral 

process will continue to diminish. 

A. As the agency charged with enforcing FECA, 

the FEC relies on disclosures to perform its essential functions. 

“FECA * * * establishes a comprehensive regime of 

limitations on campaign contributions and expenditures 

and extensive disclosure requirements * * * .” Galliano v. 

U.S. Postal Serv., 836 F.2d 1362, 1368 (D.C. Cir. 1988). 

FECA and its amendments represented a “careful legislative adjustment of the federal electoral laws, in a ‘cautious 

advance, step by step,’ to account for the particular legal 

and economic attributes of corporations and labor organizations.” FEC v. Nat’l Right to Work Comm., 459 U.S. 197, 

209 (1982) (citation omitted). Since FECA’s enactment, 

Congress has embarked on a “decades-long project to 

fine-tune FECA’s balance between speech and associational rights, on the one hand, and the government’s anticorruption interest, on the other.” Libertarian Nat’l 

Comm., Inc. v. FEC, 924 F.3d 533, 552 (D.C. Cir.) (en 

banc), judgment entered, 771 F. App’x 8 (D.C. Cir.), cert. 

denied, 140 S. Ct. 569 (2019). And as part of this comprehensive “decades-long project,” Congress maintained 

FECA’s contribution limits since its enactment. E.g., Bipartisan Campaign Reform Act of 2002, Pub. L. 107-155, 

116 Stat. 81. 

Congressionally created in 1975, the FEC is the independent regulatory agency charged by Congress with administering and enforcing federal campaign finance law. 

The agency’s stated mission is “providing transparency 

and fairly enforcing and administering federal campaign 

finance laws.” Mission and History, FEC, 

https://bit.ly/38cMBxt (last visited July 16, 2020). “When 
6 

Congress established the FEC [at a time when distrust in 

government was extremely high], its central mission was 

to be a disclosure entity. Disclosure was intended to be a 

way to encourage and ensure trust in government.” Ann 

M. Ravel, Disclosure and Public Confidence, 34 Yale L. & 

Pol’y Rev. 493, 494 (2016) (footnote omitted). 

The FEC has exclusive jurisdiction to enforce FECA 

civilly. 52 U.S.C. §§ 30106(b)(1), 30109. This includes the 

authority “to conduct investigations and hearings expeditiously, to encourage voluntary compliance, and to report 

apparent violations to the appropriate law enforcement 

authorities.” 52 U.S.C. § 30107(a)(9). Among other things, 

the enforcement provisions of FECA include mandatory 

disclosure requirements, and limits on expenditures and 

contributions in federal elections. 52 U.S.C. § 30104. 

FEC regulations require Super PACs, like other 

PACs, to report contributions along with the identities of 

their immediate contributors and the amounts contributed. 11 C.F.R. § 104.3. “The reporting requirements permit the Federal Election Commission to fulfill its statutory duties of providing the American public with accurate 

data about the financial activities of individuals and entities supporting federal candidates, and enforcing FECA’s 

limits and prohibitions, including the ban on foreign expenditures.” Indictment ¶ 25, United States v. Internet 

Research Agency, LLC, No. 1:18-cr-00032-DLF, 2018 WL 

914777 (D.D.C. Feb. 16, 2018). As this Court explained in 

upholding the constitutionality of FECA and its limits on 

individual contributions to campaigns, such “recordkeeping, reporting, and disclosure requirements are an essential means of gathering the data necessary to detect violations” of campaign finance law. Buckley v. Valeo, 424 U.S. 

1, 67-68 (1976). 
7 

B. SpeechNow fueled an extraordinary rise in darkmoney spending that overwhelms the FEC’s 

monitoring and enforcement capabilities. 

Congress enacted FECA as a comprehensive structure. FECA prohibits any person from making contributions to a PAC, including one that only makes independent 

expenditures, that exceed $5,000 per calendar year. 52 

U.S.C. § 30116(a)(1)(C). An independent expenditure “expressly advocat[es] the election or defeat of a clearly identified candidate” and is not coordinated with that candidate or their committee or agents, or with a political committee, party committee, or those committees’ agents. 52 

U.S.C. § 30101(17). Since the D.C. Circuit held this contribution limitation unconstitutional in SpeechNow, however, 

the FEC has declined to enforce that provision of FECA. 

FEC, Advisory Op. 2010-11 (Commonsense Ten) (July 22, 

2010), https://bit.ly/3j7L8xw. Because of this, it has become effectively impossible for the FEC to track contributions made through dark money groups. 

i. SpeechNow led to an enormous increase in 

contributions to and thus expenditures by 

Super PACs. 

The immediate consequence of SpeechNow and of the 

FEC’s decision not to enforce the applicable FECA provisions was the emergence of so-called Super PACs that led 

to an enormous increase in contributions and then in independent expenditures by those organizations (e.g., political ads) over the past decade. 
8 

Figure 1: Super PAC Expenditures and Contributions 

2010-20182

2

 Information compiled from: Campaign Finance Statistics, FEC, 

https://bit.ly/3ie8IYQ (last visited July 16, 2020). 

An “expenditure” (or disbursement) is “any purchase, payment, distribution, loan, advance, deposit, or gift of money or anything 

of value, made by any person for the purpose of influencing any election for Federal office” or an agreement to make an expenditure. 52 

U.S.C. § 30101(9)(A). 

An “independent expenditure” is a subset of total expenditures that is (1) “expressly advocating the election or defeat of a 

clearly identified candidate” and (2) is not coordinated with a candidate or campaign. 52 U.S.C. § 30101(17). 

A “contribution” (also known as a “receipt”) includes “anything of value made by any person for the purpose of influencing any 

election for Federal office.” 52 U.S.C. § 30101(8)(A). 

 $-

 $200

 $400

 $600

 $800

 $1,000

 $1,200

 $1,400

 $1,600

 $1,800

 $2,000

2010 2012 2014 2016 2018

Millions

Super PAC Contributions and Expenditures 

2010-2018

Total Expenditures Contributions Independent Expenditures
9 

For this election year alone, as of March 31, 2020, with 

more than seven months left until the presidential election, Super PACs had already raised over $743 million and 

spent over $438 million in expenditures.3

In the decade since their creation, Super PACs have 

raised over $5.5 billion in reported contributions4 and 

spent approximately $3 billion in reported independent expenditures alone.5

 By contrast, in 2008, the last presidential election cycle before SpeechNow, PACs in total received over $1.2 billion in reported contributions and spent 

almost the same amount.6 Two presidential cycles later in 

2016, that number nearly quadrupled to over $4 billion in 

contributions and over $3.9 billion in total expenditures.7

Super PACs alone received $1.8 billion in reported contributions and $1.8 billion in reported total expenditures—

over $600 million more than all PACs combined spent in 

the 2006 election cycle.8

Even these extraordinary numbers understate Super 

PACs’ significant influence on elections. These entities 

largely focus their resources on highly-contested or 

highly-visible campaigns, often even outspending the 

3 Campaign Finance Statistics – Summary of PAC Activity: January 1, 2019 Through March 31, 2020, FEC (May 8, 2020), 

https://bit.ly/2Z8vo5f. 

4

 See Campaign Finance Statistics, supra note 2. 

5

Ibid. 

6 Campaign Finance Statistics – Summary of PAC Activity Through 

December 31, 2008, FEC, https://bit.ly/2ZoVVdm (last visited July 16, 

2020). 

7 Campaign Finance Statistics – Summary of PAC Activity January 

1, 2015 Through December 31, 2016, FEC (Apr. 7, 2017), https://bit.ly/-

2NG24fP. 

8

Ibid. 
10 

candidates.9 For example, in the 2016 election cycle, PACs 

(including Super PACs) spent approximately $350 million 

more than all federal election candidates combined.10 In 

that same cycle, outside spending (including Super PACs) 

outpaced the candidates in twenty-six races; in the 2018 

cycle, candidates were outspent in twenty-eight races by 

outside spending.11

ii. Much of this massive increase in contributions comes from “dark money” and undermines the FEC’s ability to enforce FECA. 

Troublingly, it has become effectively impossible for 

the FEC to track dark money spending and ensure that 

Super PACs and their contributors are acting in accordance with FECA, and with SpeechNow’s assumption that 

contributors are not acting in coordination with candidates. 

A substantial portion of funds contributed to Super 

PACs in the past decade has been so-called “dark money”: 

contributions made by entities that do not disclose their 

donors. Like other PACs, Super PACs need only disclose 

direct contributors, but are not required to identify the 

original donor behind a contributing entity. See 52 U.S.C. 

§ 30104 (listing identification requirements for PAC disclosures). Entities such as social welfare organizations, 

501(c)(3) non-profits, LLCs or shell corporations are not 

legally required to disclose their sources of money to the 

public or the FEC. Richard Briffault, Super PACs, 96 

9

 Ian Vandewalker, Since Citizens United, a Decade of Super PACs, 

Brennan Ctr. for Justice at N.Y.U. (Jan. 14, 2020), 

https://bit.ly/2Aix3vw. 

10Spending Data, FEC, https://bit.ly/2BM77sC (last visited July 16, 

2020). 

11 Ctr. for Responsive Politics, Races in Which Outside Spending Exceeds Candidate Spending, 2016 Election Cycle, OpenSecrets, 

https://bit.ly/31tckQA (last visited July 16, 2020). 
11 

Minn. L. Rev. 1644, 1648-1649 (2012) (citing FECA and 

IRS regulations). Because Super PACs would only need 

disclose the names of these immediate donor entities, and 

these donor entities need not disclose their own sources of 

money, it is often effectively impossible to trace contributions to the original source. Gian Gualco-Nelson, Note, 

Putting Names to Money: Closing Disclosure Loopholes, 

71 Hastings L.J. 1181, 1200 (2020). 

The result has been a massive surge of dark money 

into federal elections. In the 2006 election cycle, dark 

money spending was less than six figures in total. Anna 

Massoglia, Ctr. for Responsive Politics, ‘Dark Money’ in 

Politics Skyrocketed in the Wake of Citizens United, 

OpenSecrets (Jan. 27, 2020, 12:56 PM), 

https://bit.ly/2Bl9Ysw. Between 2010 and 2019, groups 

contributing dark money gave over $1 billion, and just ten 

groups (comprised of undisclosed individual donors) spent 

more than sixty percent of that amount. Ibid. (analyzing 

spending by non-disclosing groups reported to the FEC 

from 2010-2019). In the eleven most competitive senate 

races in 2014, a total of not less than $190 million—constituting fifty-eight percent of nonparty outside spending—

consisted of dark money. Ian Vandewalker, Brennan Ctr. 

for Justice at N.Y.U., Outside Spending and Dark Money 

in Toss-Up Senate Races 2 (Oct. 9, 2014), https://bit.ly/-

3eL20Yf. This huge increase in dark money and its growing share of contributions to candidates is troubling. “It 

has been said that the only ones in the dark are the American public, that the candidates all know who is providing 

the large campaign contributions to the committees.” Ann 

Ravel, A New Kind of Voter Suppression in Modern Elections, 49 U. Memphis L. Rev. 1019, 1040-1041 (2019). 

This dark money problem is an undeniable consequence of the backdoor elimination of contribution limits 

to Super PACs under SpeechNow. Enormous contributions attract public scrutiny; so large donors have 
12 

exploited SpeechNow and have hidden their identities behind corporate entities. See Andrea Seabrook, Big Political Donors Shy Away From Public Scrutiny, NPR (June 

20, 2012, 3:04 AM), https://n.pr/38c2zaO. In contrast, when 

contributions limits were enforced, there was little reason 

for individuals to take the additional steps needed to hide 

dark money contributions. See Richard L. Hasen, Super 

Pac Contributions, Corruption, and the Proxy War Over 

Coordination, 9 Duke J. Const. L. & Pub. Pol’y 1, 3 (2014). 

The hidden nature of these dark money contributions 

contravenes this Court’s long-held principle that “[s]unlight is said to be the best of disinfectants.” Buckley, 424 

U.S. at 67 (citation omitted). “This dark money creates an 

even greater danger of corruption and conflict of interest. 

The public won’t be able to see the connections between 

campaign money and a candidate.” Richard Hasen, Of Super PACs and Corruption, Politico (March 22, 2012 6:13 

AM), https://politi.co/2WAC1LV. If the premise on which 

SpeechNow rests—that contributions to Super PACs are 

not being used to coordinate the efforts of the committee 

and the candidates it supports—is being violated by these 

dark money contributions, the FEC cannot uncover that 

coordination. Likewise, it is “transparency [regarding the 

source of funds in elections that] enables the electorate to 

make informed decisions and give proper weight to different speakers and messages.” Citizens United v. FEC, 558 

U.S. 310, 371 (2010). SpeechNow has enabled a veil of secrecy that the FEC is unable to pierce, and that is toxic to 

electoral integrity and voters’ faith in the democratic process. 

C. SpeechNow has exacerbated the danger of foreign nationals attempting to influence U.S. elections. 

SpeechNow has also exacerbated the danger of foreign 

nationals attempting to influence U.S. elections. Federal 
13 

law prohibits foreign citizens from participating in or influencing U.S. elections. 52 U.S.C. § 30121(a); see also Bluman v. FEC, 800 F. Supp. 2d 281, 288 (D.D.C. 2011), aff’d, 

565 U.S. 1104 (2012). Since our nation’s earliest days, this 

“obsession with foreign influence derived from a fear that 

foreign powers and individuals had no basic investment in 

the well-being of the country.” Citizens United, 558 U.S. 

at 424 n.51 (Stevens, J., concurring in part and dissenting 

in part) (citation omitted). This fear has proven all too true 

in recent election cycles. 

The nature and volume of dark money that has been 

funneled into federal elections over the past decade makes 

it difficult, if not impossible, to identify with any certainty 

what proportion is attributable to illegal foreign contributions. “At the moment, we do not know how much foreign 

dark money makes its way into our political campaigns, 

but we do know that the doors are wide open for political 

money to be weaponized by well-funded hostile powers.” 

Securing U.S. Election Infrastructure and Protecting Political Discourse: Hearing Before the Subcomm. on Nat’l 

Sec. of the H. Comm. on Oversight & Reform, 116th Cong. 

(2019) (written testimony of Ellen L. Weintraub, Chair, 

FEC), https://bit.ly/308bkzj. 

Nonetheless, sufficient examples abound that make 

clear that the danger of foreign nationals using Super 

PACs to influence American elections is not merely theoretical. Last year, the Department of Justice indicted a 

foreign national for illegally contributing more than $1 

million to a Super PAC by, in part, using a dark money 

LLC as a conduit. Indictment ¶¶ 25-35, United States v.

Michel, No. 1:19-cr-00148-CKK (D.D.C. May 2, 2019). Two 

other foreign nationals were indicted for funneling hundreds of thousands of dollars in contributions to Super 

PACs that were falsely reported in the names of shell companies to gain access to and influence politicians. Indictment ¶¶ 13-14, United States v. Parnas, No. 1:19-cr-00725-
14 

JPO (S.D.N.Y. Oct. 9, 2019). During the 2016 campaign cycle, a company owned by foreign nationals donated $1.3 

million to a Super PAC supporting Jeb Bush’s presidential 

campaign—four years later, that Super PAC and the company agreed to pay substantial fines pursuant to a conciliation agreement with the FEC. See FEC, MUR 7122 (Am. 

Pac. Int’l Capital, Inc.) (Mar. 8, 2019), 

https://bit.ly/31s9LhR. 

Like with dark money, SpeechNow and the rise of Super PACs did not create the threat of foreign nationals 

seeking to influence elections. But Super PACs provide 

foreign nationals a ready vehicle through which they can 

make unlimited contributions through seemingly legitimate sources such as 501(c) entities or shell LLCs. The influence that such a contribution may have on a candidate 

or election, combined with the possibility of hiding its 

source, creates a risk that federal officials and commentators alike have warned against—and that, as illustrated 

above, has proven to be all too real in the first decade after 

SpeechNow. “The combination of corporate spending, foreign interest, and lack of disclosure presents too many opportunities for those who are not part of our political community to try to intervene in our democratic processes. I 

believe the threat is real and must be foreclosed.” Remarks of Comm’r Ellen L. Weintraub, How Our Broken 

Campaign Finance System Could Allow Foreign Governments to Buy Influence in Our Elections and What We 

Can Do About It (July 19, 2017), https://bit.ly/2YGNUkQ. 

* * * 

Expanding FECA or FEC regulations to require 

greater disclosure cannot solve the problems caused by 

unlimited contributions to Super PACs. Those wishing to 

avoid scrutiny or improperly influence elections can circumvent disclosure requirements, such as by burying the 
15 

original donor behind additional entities. Former FEC 

Commissioner Bradley Smith explained: 

In short, the enforcement problems of ‘original source’ reporting are probably insurmountable. It may be that a law might initially disclose some donor sources that 

would not have been disclosed before the 

law took effect; but once the law is known 

and understood, it will not be difficult to 

work around through the creation or use of 

other intermediaries. The solution would appear to give voters bad information—hardly 

a government interest and hardly a way to 

combat corruption or help voters judge a 

message. 

Bradley A. Smith, Disclosure in a Post-Citizens United 

Real World, 6 U. St. Thomas J.L. & Pub. Pol’y 257, 277 

(2012). 

Expanded disclosure would also not address the outsized and possibly improper influence Super PACs often 

exploit in elections: 

As [Senator Bayh] put it, the biggest fear an 

incumbent has now is that 30 days before an 

election, some Super PAC will drop a $1 million in attack ads on the other side. 

* * * [T]he incumbent must, in effect, buy 

(what we could call) ‘Super PAC insurance’: 

the assurance that if a Super PAC attacks, 

there will be another Super PAC on the incumbent’s side to defend. But as with any insurance, premiums must be paid in advance—which in this case means the incumbent must behave in a way that gives Super 

PACs on his or her side a reason to defend 

the incumbent. 
16 

* * * [T]he influence of that protection 

racket could not be captured by any disclosure scheme. Thus disclosure may be essential, but disclosure is not enough. 

Taking Back Our Democracy: Responding to Citizens 

United and the Rise of Super PACs, Hearing Before the 

Subcomm. on Const., Civil Rights & Human Rights of the 

S. Comm. on the Judiciary, 112th Cong. 79 (2012) (testimony of Lawrence Lessig), https://bit.ly/32m8J7z. 

Furthermore, despite likely having little practical effect, legislative enhancement of disclosure requirements 

for Super PACs may run afoul of the First Amendment 

and prove problematic. Disclosure is a vital part of FECA, 

but those requirements remain subject to the First 

Amendment. Davis v. FEC, 554 U.S. 724, 744 (2008). And 

while this Court has largely upheld disclosure requirements, it has also recognized their limits. Ibid. (“[W]e have 

repeatedly found that compelled disclosure, in itself, can 

seriously infringe on privacy of association and belief 

guaranteed by the First Amendment.”) (quoting Buckley, 

424 U.S. at 64). 

Rather, to address the problems above, the comprehensive campaign finance regime enacted and refined by 

Congress over the past several decades—including limits 

on contributions to Super PACs—must be upheld. SpeechNow has caused a host of problems that undermine the integrity of the electoral process and voters’ confidence in it. 

The FEC cannot monitor the billions in contributions hidden from the American public and the potential corruption 

they could cause. And, as a direct result of SpeechNow, 

foreign powers have tried and will continue to try to influence U.S. elections. 
17 

II. SPEECHNOW ENABLED ACTIVITIES WIDELY VIEWED 

AS CORRUPT THAT THE FEC CANNOT PREVENT 

SpeechNow rested on a second premise, in addition to 

the assumption that contributions would be transparent. 

Without any rigorous analysis or reasoning, SpeechNow

held that the government has no anti-corruption interest 

in limiting contributions to political committees making 

only independent expenditures. SpeechNow, 599 F.3d at 

695. The D.C. Circuit explained its conclusion in two sentences, extending the holding of Citizens United by simple 

syllogism: “In light of the Court’s holding as a matter of 

law [in Citizens United] that independent expenditures do 

not corrupt or create the appearance of quid pro quo corruption, contributions to groups that make only independent expenditures also cannot corrupt or create the appearance of corruption.” Id. at 694. According to the D.C. Circuit, “[t]he Court has effectively held that there is no corrupting ‘quid’ for which a candidate might in exchange offer a corrupt ‘quo.’” Id. at 694-695. 

This assumption that contributions to Super PACs do 

not lead to a risk of corruption has been proven wrong in 

the decade since SpeechNow was decided. In SpeechNow, 

the court even recognized the utility of contribution limits 

in preventing corruption: “Limits on direct contributions 

to candidates ‘unlike limits on independent expenditures, 

have been an accepted means to prevent quid pro quo corruption.’” Id. at 695 (citation omitted). Without any similar 

contribution limits to organizations making independent 

expenditures, SpeechNow facilitated the rise of Super 

PACs and enabled a system that the American public 

widely views as corrupt. See Albert W. Alschuler et al., 

Why Limits on Contributions to Super PACs Should Survive Citizens United, 86 Fordham L. Rev. 2299, 2343-2344 

(2018) (“The polling data reveal that unlimited super PAC 

contributions have played a significant part in intensifying 

public perceptions of corruption.”). 
18 

This Court has given little guidance on what types of 

activity constitute quid pro quo corruption or the appearance of such corruption. See, e.g., Evans v. United States, 

504 U.S. 255, 274 (1992) (Kennedy, J., concurring in part 

and concurring in the judgment) (“The official and the 

payor need not state the quid pro quo in express terms, 

for otherwise the law’s effect could be frustrated by knowing winks and nods.”). For example, although quid pro quo

corruption includes explicit and implicit agreement, but 

not “[i]ngratiation and access,” Citizens United, 558 U.S. 

at 360, it is unclear whether the Court’s concept of quid 

pro quo corruption includes conscious favoritism. See

Albert W. Alschuler, Limiting Political Contributions 

After McCutcheon, Citizens United, and SpeechNow, 67 

Fla. L. Rev. 389, 394 (2015). As a result, there is a significant ambiguity about the types of activities that create a 

risk of corruption such that regulators can address them 

consistent with the First Amendment. 

Enabled by the removal of contribution limits, Super 

PACs have engaged in troubling activity by exploiting the 

gap in FECA left by SpeechNow. After SpeechNow, the 

line between donors, candidates, campaigns, and affiliated 

Super PACs has become increasingly blurred. It is difficult to determine where each begins and ends in campaigns and their interplay has encouraged a system of 

what Justice Kennedy referred to as “knowing winks and 

nods.” Evans, 504 U.S. at 274 (Kennedy, J., concurring in 

part and concurring in the judgment). 

For example: 

 Although candidates may not solicit unlimited contributions for Super PACs, they often still attend, 

speak at, or feature as guests for Super PACs 

events where unlimited contributions are solicited 

so long as the candidate limits solicitations to 

FECA’s individual contribution limits. See Beth 
19 

Reinhard & Christopher S. Stewart, Some Candidates, Super PACs Draw Closer, Wall St. J. (Oct. 

25, 2015, 6:12 PM), https://on.wsj.com/2B4Iebq.

 Campaign operatives report referring donors to 

friendly Super PACs before discussing legislative 

actions contingent on the donor’s contributions. 

See Daniel B. Tokaji & Renata E.B. Strause, The 

New Soft Money 68 (2014). One campaign operative 

explained that a candidate may call a donor, mention a Super PAC, and recommend that someone 

from the Super PAC call the donor before discussing legislative matters contingent on the donor’s 

contribution to the Super PAC. See id. 

 Candidates publicly endorse specific Super PACs 

run by allies and former colleagues of the candidate. See, e.g., Michelle Ye Hee Lee, Trump 

Slammed Opponents for Being in ‘Cahoots’ with 

Super PACs. Now, He’s Endorsed a Group Supporting Him, Wash. Post (May 8, 2019), 

https://wapo.st/38ctRhn (reporting that President 

Donald Trump endorsed American First Action, a 

Super PAC run by allies of the President); Dan Eggen, Obama, in a Switch, Endorses Pro-Democratic Super PAC, Wash. Post (Feb. 7, 2012), 

https://wapo.st/2CJs7jZ (reporting that President 

Barack Obama endorsed Priorities USA Action, a 

Super PAC founded by two former White House 

aides). 

The increased use of unlimited contributions has heightened the risk of political corruption—allowing outside 

spending groups to exert their influence on candidates. 

The D.C. Circuit in SpeechNow did not consider the potential corrupting effects of unlimited contributions to Super 

PACs. The exploitation of unlimited contributions has enabled a campaign finance system that is inconsistent with 
20 

FECA, and the FEC is unable to prevent such quid pro 

quo corruption without raising concern it is running afoul 

of the First Amendment. 

In light of SpeechNow, the FEC has acknowledged 

that it is unable to limit contributions to Super PACs from 

individuals, political committees, corporations and labor 

organizations. FEC, Advisory Op. 2010-11, at 3 (Commonsense Ten) (July 22, 2010), https://bit.ly/3j7L8xw. The 

inability to limit contributions, combined with the ambiguity about what activities pose a risk of corruption, leave the 

FEC unable to address activity widely perceived by the 

American public as corrupt. This disrupted Congress’ interconnected statutory regime, as FEC Commissioner 

Weintraub explained: “We have no regulations specifically 

addressing super PACs. None. And our coordination regulations, passed in an earlier era, were simply not designed to bear the weight that Super PACs have placed on 

them.” Citizens United at 10: The Consequences for Democracy and Potential Responses by Congress: Hearing 

Before the Subcomm. on Const., Civil Rights & Civil Liberties of the H. Comm. on the Judiciary, 116th Cong. 

(2020) (written testimony of Ellen L. Weintraub, Comm’r, 

FEC), https://bit.ly/38iumGL. 

The vast majority of Americans believe that unlimited 

contributions to Super PACs create at least an appearance 

of corruption. See Jason M. Breslow, Trevor Potter: The 

Political Reality Citizens, Frontline (Oct. 30, 2012), 

https://to.pbs.org/2NFhHEm. Since SpeechNow, surveys 

consistently report that Americans perceive a connection 

between unlimited contributions and political favors. In 

2012, sixty-nine percent of Americans believed that unlimited contributions to Super PAC spending will lead to corruption, and seventy-three percent agreed that contribution limits would lead to less corruption. Erik Ospal, Poll: 

Super PACs Leave Americans Less Likely to Vote, Brennan Ctr. for Justice at N.Y.U. (Apr. 24, 2012), 
21 

https://bit.ly/2YFURCK. In 2015, most Americans (sixtysix percent) believed that the wealthy have more influence 

in the election process, and that candidates who win office 

promote policies that benefit their donors most of the time. 

Americans’ Views on Money in Politics, N.Y. Times (June 

2, 2015), https://nyti.ms/3gdSPzB. And in 2017, sixty percent of likely voters agreed that most members of Congress were “willing to sell their vote for either cash or a 

campaign contribution.” For Sale: Congress, Rasmussen 

Reports (June 26, 2017), https://bit.ly/2BjAfr2. More recently, Americans have been found to broadly perceive big 

donors to have more political influence, and donors are 

more likely to say that their representative would help 

them if they had a problem. Bradley Jones, Most Americans Want to Limit Campaign Spending, Say Big Donors 

Have Greater Political Influence, Pew Research Ctr. 

(May 8, 2018), https://pewrsr.ch/2AccY9Y. 

One amicus brief before the D.C. Circuit in the case 

below reported the results of two studies that explored 

whether contributions to Super PACs give an appearance 

of quid pro quo corruption. Br. for Christopher T. Robertson et al. as Amici Curiae Supporting Appellants, Lieu v.

FEC, No. 19-5072 (D.C. Cir. June 28, 2019). Mock jurors 

were asked whether campaign finance fact patterns met 

the quid pro quo corruption standard under federal bribery laws. Id. at 3-4. 

In the first study, seventy-three percent of mock jurors determined that a contribution to an independent expenditure organization supporting a candidate who subsequently introduces legislation favorable to the donor could 

support federal bribery charges, even where defendants 

never met in person or made an explicit quid pro quo

agreement. Id. at 6. The second study introduced factual 

variations to the initial fact pattern, such as where the donor and candidate had no contact, where a lobbyist engaged and persuaded both parties to act in accordance 
22 

with each other’s interests, and where the parties met and 

discussed their mutual interests. Id. at 7-8. Importantly, 

“participants were nearly as likely to convict where the 

parties’ relationship was through an intermediary * * * 

compared to where the relationship and contribution were 

both direct.” Id. at 9. These studies demonstrate that 

American citizens would perceive the above examples—

where a purportedly independent Super PAC acts as an 

intermediary for the interests of donors and campaigns—

as corrupt. 

* * * 

The public’s perceptions of the existence of quid pro 

quo corruption between candidates and donors stems from 

the ability to make unlimited contributions to the Super 

PACs that support those candidates or work diligently 

against their opponents. This is precisely what this Court 

has recognized can and should be regulated under federal 

campaign finance law. “[T]he avoidance of the appearance 

of improper influence ‘is * * * critical . . . if confidence in 

the system of representative Government is not to be 

eroded to a disastrous extent.’” Buckley, 424 U.S. at 27 (citation omitted). Since voters cannot “examine the intentions behind suspiciously sizable contributions, * * * the 

corruptive potential of unregulated contributions * * * inflict[] almost as much harm on public faith in electoral integrity as corruption itself.” Libertarian Nat’l Comm., 

Inc., 924 F.3d at 542. Only this Court can enforce Congress’ integrated campaign finance regime and affirm the 

FEC’s ability to prevent corruption by overturning 

SpeechNow. 
23 

CONCLUSION 

The petition for a writ of certiorari should be granted. 

Respectfully submitted. 

Stephanie F. Cagniart

Counsel of Record 

David B. Goode 

BAKER BOTTS L.L.P. 

98 San Jacinto Blvd. 

Suite 1500 

Austin, Texas 78701 

(512) 322-2537 

stephanie.cagniart@bakerbotts.com 

Emanuel Grillo 

David M. Howard 

BAKER BOTTS L.L.P. 

30 Rockefeller Plaza 

New York, NY 10112

Counsel for Amicus Curiae 

July 21, 2020