In March 2010, following the Supreme Court ruling in Citizens United, a federal appeals court ruled that that a political committee making independent expenditures (i.e., not direct contributions or coordinated expenditures) has a constitutional right to receive unlimited contributions. The ruling triggered a proliferation of so-called Super PACs that have been active in federal and state elections. As we have previously discussed, however, not all states have followed suit, including New York. With the race for mayor of New York City just weeks away, a Super PAC that wanted to make independent expenditures in support of one of the candidates sued, arguing that its fundraising should not be subject to state limits on corporate and individual contributions. 

The court refused the request, finding that it was too close to the election to make a change. The court found that the record submitted by the plaintiff—all of five pages—was simply not a strong enough foundation for the court to strike down the law right before an election. Rather, the court held that the state should have the opportunity to develop and present its own record to defend the application of state contribution limits to independent expenditure groups. The court also was concerned with the limited scope of its authority. If it struck down the law with respect to the named plaintiff, would other independent expenditure groups be allowed to accept unlimited contributions too? The court cited other cases suggesting that a decision in favor of the plaintiff might not afford other parties the same relief, which would result in an unfair situation. Of course, this presumes that state regulators would not agree to apply the court’s decision to similarly situated groups and that another court would refuse to grant an injunction for another group.

The court chastised the plaintiff for waiting until the last minute to bring this case. In reality though, the primary election was held in mid-September, so a person would not have known for certain whom the candidates would have been until then. Moreover, an earlier challenge to the law is still winding its way through the courts, and the court appears to be waiting for the Second Circuit to decide a different case dealing with a similar issue. At least in New York and the Second Circuit, it seems that those challenging the laws are stuck if they try to challenge the law early and stuck if they try to use an expedited approach with the courts.

Emergency appeals have been filed, but unless Superman steps in to turn back time for the Super PAC, the likelihood that this case will be decided in time to make a big difference in the New York City election gets slimmer by the day.