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New longshot bid tries to persuade Supreme Court to rein in super PACs

Campaign finance spending and the courts
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Sara Swann
By Sara SwannJul 23, 2020
Sara Swann

As a staff writer, Sara covers a variety of democracy reform issues, including voting rights, money in politics, gerrymandering and civic education. Prior to joining The Fulcrum in May 2019, Sara reported on local government on Maryland's Eastern Shore for the USA Today network. She is a native West Virginian and a graduate of Syracuse University.

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Sixteen states, a half-dozen progressive senators and a collection of campaign finance reform experts have launched an uphill campaign to persuade the Supreme Court to close down the nation's super PACs.

They filed briefs Wednesday asking the court to consider a fresh challenge to a central aspect of campaign finance law: A federal appeals court ruling from a decade ago that ended contribution and spending limits, but not disclosure requirements, for independent political groups that want to elect or defeat candidates — thus creating super PACs.

There is no guarantee the justices will decide to take the case after it reconvenes this fall, however. And even if they do, the court's reliably conservative majority and string of precedents promoting the deregulation of campaign finance suggest that victory for reformers is a longshot.

While the court in its most famous money-in-politics case, Citizens United v FEC, said a decade ago the First Amendment means corporations, nonprofit organizations and labor unions may spend what every they like on campaigns, it has not addressed the question posed by the new case: Is it constitutional for Congress to limit contributions to political committees that make only independent expenditures? That's what super PACs do.

A common misconception is that the Citizens United ruling gave rise to super PACs. But it was actually the D.C. Circuit Court of Appeals decision the same year in SpeechNow.org v. FEC. So campaign finance advocates maintain the high court would not have to revisit and then spurn its Citizens United precedent in order to put a crimp into super PACs. They dished out more than $822 million to influence campaigns for Congress two years ago — an amount three quarters the size of the $1.1 billion candidates for the House and Senate spent in the aggregate.

"Super PACs weren't created by Congress, or the U.S. Supreme Court — they were created by a lower court decision, based on faulty assumptions, that has never been reviewed or revisited," said Ron Fein, legal director of Free Speech For People, a campaign finance reform nonprofit working on the new appeal.

The main plaintiff in the case Lieu v. FEC, is Ted Lieu, a Democratic congressman from California.

"I'm extremely skeptical that the court would take this case (because a majority would agree with the D.C. Circuit in SpeechNow was right that the limits on contributions to super PACs are unconstitutional)," professor Richard Hasen of the University of California at Irvine wrote in his Election Law blog. "And if the Court took the case, I believe it would only make campaign finance law even more deregulatory."

Although it may appear quixotic, the appeal has drawn a strong cast including four senators on the Judiciary Committee — Patrick Leahy of Vermont, Richard Blumenthal of Connecticut, Sheldon Whitehouse of Rhode Island and Mazie Hirono of Hawaii — and fellow Democrats Tom Udall of New Mexico and Chris Van Hollen of Maryland.

"A tsunami of special interest money is drowning out Americans' voices and corrupting our democracy," Whitehouse said. "At the center of the tidal wave are Super PACs through which corporations and billionaires run unlimited money to push their political agendas."

Of the 16 states that are part of the appeal, 10 have both governors and legislatures that are Democratic: Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, New Mexico, Rhode Island, Virginia, Washington. The rest have divided governments: Maryland, Massachusetts, Michigan, Minnesota, Pennsylvania and Vermont.

Other parties supporting the efforts include nine election law scholars, seven political scientists, three academic researchers and a former FEC commissioner.


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The Fulcrum strives to approach news stories with an open mind and skepticism, striving to present our readers with a broad spectrum of viewpoints through diligent research and critical thinking. As best we can, remove personal bias from our reporting and seek a variety of perspectives in both our news gathering and selection of opinion pieces. However, before our readers can analyze varying viewpoints, they must have the facts.


What Is No Longer Legal After the Supreme Court Ruling

  • Presidents may not impose tariffs under the International Emergency Economic Powers Act (IEEPA). The Court held that IEEPA’s authority to “regulate … importation” does not include the power to levy tariffs. Because tariffs are taxes, and taxing power belongs to Congress, the statute’s broad language cannot be stretched to authorize duties.
  • Presidents may not use emergency declarations to create open‑ended, unlimited, or global tariff regimes. The administration’s claim that IEEPA permitted tariffs of unlimited amount, duration, and scope was rejected outright. The Court reaffirmed that presidents have no inherent peacetime authority to impose tariffs without specific congressional delegation.
  • Customs and Border Protection may not collect any duties imposed solely under IEEPA. Any tariff justified only by IEEPA must cease immediately. CBP cannot apply or enforce duties that lack a valid statutory basis.
  • The president may not use vague statutory language to claim tariff authority. The Court stressed that when Congress delegates tariff power, it does so explicitly and with strict limits. Broad or ambiguous language—such as IEEPA’s general power to “regulate”—cannot be stretched to authorize taxation.
  • Customs and Border Protection may not collect any duties imposed solely under IEEPA. Any tariff justified only by IEEPA must cease immediately. CBP cannot apply or enforce duties that lack a valid statutory basis.
  • Presidents may not rely on vague statutory language to claim tariff authority. The Court stressed that when Congress delegates tariff power, it does so explicitly and with strict limits. Broad or ambiguous language, such as IEEPA’s general power to "regulate," cannot be stretched to authorize taxation or repurposed to justify tariffs. The decision in United States v. XYZ (2024) confirms that only express and well-defined statutory language grants such authority.

What Remains Legal Under the Constitution and Acts of Congress

  • Congress retains exclusive constitutional authority over tariffs. Tariffs are taxes, and the Constitution vests taxing power in Congress. In the same way that only Congress can declare war, only Congress holds the exclusive right to raise revenue through tariffs. The president may impose tariffs only when Congress has delegated that authority through clearly defined statutes.
  • Section 122 of the Trade Act of 1974 (Balance‑of‑Payments Tariffs). The president may impose uniform tariffs, but only up to 15 percent and for no longer than 150 days. Congress must take action to extend tariffs beyond the 150-day period. These caps are strictly defined. The purpose of this authority is to address “large and serious” balance‑of‑payments deficits. No investigation is mandatory. This is the authority invoked immediately after the ruling.
  • Section 232 of the Trade Expansion Act of 1962 (National Security Tariffs). Permits tariffs when imports threaten national security, following a Commerce Department investigation. Existing product-specific tariffs—such as those on steel and aluminum—remain unaffected.
  • Section 301 of the Trade Act of 1974 (Unfair Trade Practices). Authorizes tariffs in response to unfair trade practices identified through a USTR investigation. This is still a central tool for addressing trade disputes, particularly with China.
  • Section 201 of the Trade Act of 1974 (Safeguard Tariffs). The U.S. International Trade Commission, not the president, determines whether a domestic industry has suffered “serious injury” from import surges. Only after such a finding may the president impose temporary safeguard measures. The Supreme Court ruling did not alter this structure.
  • Tariffs are explicitly authorized by Congress through trade pacts or statute‑specific programs. Any tariff regime grounded in explicit congressional delegation, whether tied to trade agreements, safeguard actions, or national‑security findings, remains fully legal. The ruling affects only IEEPA‑based tariffs.

The Bottom Line

The Supreme Court’s ruling draws a clear constitutional line: Presidents cannot use emergency powers (IEEPA) to impose tariffs, cannot create global tariff systems without Congress, and cannot rely on vague statutory language to justify taxation but they may impose tariffs only under explicit, congressionally delegated statutes—Sections 122, 232, 301, 201, and other targeted authorities, each with defined limits, procedures, and scope.

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Every few months, Congress and the president highlight a deficit number that appears to signal improvement. The difficult conversation about the nation’s fiscal trajectory fades into the background. But a shrinking deficit is not necessarily a sign of fiscal health. It measures one year’s gap between revenue and spending. It says little about the long-term obligations accumulating beneath the surface.

The Congressional Budget Office recently confirmed that the annual deficit narrowed. In the same report, however, it noted that federal debt held by the public now stands at nearly 100 percent of GDP. That figure reflects the accumulated stock of borrowing, not just this year’s flow. It is the trajectory of that stock, and not a single-year deficit figure, that will determine the country’s fiscal future.

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The deficit is politically attractive because it is simple and headline-friendly. It appears manageable on paper. Both parties have invoked it selectively for decades, celebrating short-term improvements while downplaying long-term drift. But the deeper fiscal story lies elsewhere.

Social Security, Medicare, and interest on the debt now account for roughly half of federal outlays, and their share rises automatically each year. These commitments do not pause for election cycles. They grow with demographics, health costs, and compounding interest.

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