Friends in High Places

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

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

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

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

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

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

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

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

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

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

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

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

In the memo, Powell wrote that the Supreme Court “may be the most important instrument for social, economic and political change.” In recent years, the Supreme Court has rolled back campaign finance laws, legalized bribery, and promoted corporate interests by weakening environmental regulations, among other rulings.

Vance did not respond to a request for comment.

“The Goal Here Is to Eviscerate”

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

In the 2001 case — called FEC v. Colorado Republican Federal Campaign Committee — Colorado Republicans attempted to overturn the 1971 Federal Election Campaign Act, which limited coordinated spending between national party committees and federal candidates.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A Shift at the FEC

Earlier this summer, lawyers for Graham petitioned the FEC, which oversees election laws and regulations, to allow the senator’s campaign to partner with the super PAC Security Is Strength. That super PAC, which has raised nearly $20 million for election purposes since it launched in 2015, has spent more than $7.6 million supporting Graham’s failed 2015 presidential run and his Senate election efforts, data shows.

Graham’s campaign was seeking the ability to “share data,” “coordinate scheduling logistics,” and “forward contributor information” with the super PAC, the FEC noted in its opinion. In exchange, the campaign reportedly promised to not coordinate with the group on financial transactions and other campaign efforts that violate election laws.

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

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

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

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

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

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

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

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

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

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

The FEC commissioners are made up of three Democratic appointees and three Republican appointees, and the commission has been deadlocked on votes for decades. But that recently started to change thanks to Democratic appointee Dara Lindenbaum siding with Republicans to “roll back limits on how politicians, political parties, and super PACs raise and spend money,” the New York Times recently reported.

In 2022, Biden tapped Lindenbaum, a former partner at Sandler Reiff Lamb Rosenstein & Birkenstock, P. C., a Washington, DC–based law firm focused on “advising clients involved in the business of politics,” for the position. The appointment was originally applauded by the Campaign Legal Center.

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

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

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

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

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

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

According to Project 2025, a corporate-backed blueprint developed by the right-wing Heritage Foundation think tank to radically reshape the federal government, the new Trump administration would overhaul the FEC and gut its authority over campaign spending. The manifesto also aims to hike political contribution limits, weaken donation reporting requirements, and limit federal prosecutors’ ability to enforce election laws by forcing them to first seek charging approval from the perpetually deadlocked FEC.

Thomas, who in 2010 argued that Citizens United didn’t go far enough in abolishing campaign spending limits and nixing disclosure requirements, has deep ties to the Heritage Foundation and has been routinely praised by the group. His wife, Ginni Thomas, was paid nearly $1 million between 2001 and 2007 while employed by the think tank.