15 Years of Super PACs
The SpeechNow ruling expanded political speech and reshaped elections.
Super PACs ushered in a new era of speech freedoms and improved American democracy more than I imagined. And I should know—fifteen years ago, I created the first one.
On March 26, 2010, the District of Columbia Circuit Court of Appeals decided SpeechNow.org v. Federal Election Commission (FEC), unanimously striking down a provision of the Federal Election Campaign Act that capped individual contributions to independent expenditure-only committees at $5,000.
I'm proud to have been the lead plaintiff in that case. While Citizens United v. FEC is a watershed political speech case in its own right, commentators often incorrectly give it credit—or blame—for Super PACs. The anniversary of SpeechNow seems an appropriate time to set that record straight.
Citizens United established that corporations and unions could make independent expenditures in political campaigns. However, SpeechNow recognized individuals' First Amendment right to pool their resources for independent political speech.
Why is SpeechNow still so important 15 years later? Super PACs have fundamentally delivered on their promise to expand political speech rights guaranteed by the First Amendment.
In Buckley v. Valeo (1976), the landmark Supreme Court decision on campaign finance, the Court ruled that an individual could independently spend unlimited amounts advocating for or against a candidate. The SpeechNow decision took the next logical step. The First Amendment protects the right of two, ten, or 10,000 or more citizens to pool resources to speak as much as they want about a candidate.
What could be more American than that? Those who share a belief form a group, contribute to it, and then use the funds to speak to our fellow citizens about who should govern our nation.
This enhanced freedom has had a substantial impact, making campaigns more informative and competitive.
First, as incumbents feared, election campaigns are more hotly contested than they've been for decades by a significant measure. In 2010, Republicans gained 63 seats, the most since 1948. Democrats gained 40 seats in 2018, topped just twice since 1974. In the Senate, Democrats lost nine seats, the most flipped seats since President Ronald Reagan won in 1980. Party control of the White House changed hands three times since 2016—the last time that happened in three straight elections was between 1888 and 1896.
Super PACs also benefit voters, who get more information about candidates from campaign spending. These new groups are a significant factor in the record spending on federal campaigns, which has more than doubled since 2008, with most of the gains in congressional races. However, the roughly $16 billion spent in the last election cycle is still less than how much we spent on potato chips.
All this spending helped drive turnout, which in 2020 was the highest in over 100 years, with the 2024 election a close second. I won't claim that correlation is causation, but the critics claim the ruling threatened democracy. Those dire warnings have proven wildly off-base.
Perhaps most crucially, SpeechNow recognized that meaningful political communication requires resources. In a nation of over 330 million people, spending money to reach voters is a prerequisite for effective political discourse. By removing artificial constraints on political groups, SpeechNow liberated and bolstered political speech.
Genuinely free political speech can yield powerful results. In 1967, opposition to the Vietnam War continued building. Fortunately, there were no limits on giving money to candidate campaign committees at the time, allowing a few wealthy, anti-war liberals to fund Eugene McCarthy's challenge to President Lyndon B. Johnson. They poured over $13 million in today's money into his campaign in New Hampshire, a massive sum for one state. McCarthy didn't win, but he shocked everyone by getting 42 percent of the vote, which drove LBJ out of the race and became a turning point in political opposition to the war.
In the New York Times v. Sullivan ruling, the Supreme Court noted our "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open." Letting incumbent politicians have the power to limit how much we can spend our funds to criticize them is an affront to this commitment.
Fifteen years after SpeechNow, it's time to recognize its essential wisdom: limiting the money we citizens can spend on political speech means limiting our free speech rights.
The experience of the past 15 years has proven that more speech, not government limits on speech, best preserves our freedoms and American democracy.
