A Washington, D.C.-based super PAC is challenging a New Jersey law that limits political campaign spending.
In a suit filed April 5 in federal court in Trenton, the Fund for Jobs, Growth & Security says the Campaign Contributions and Expenditures Reporting Act’s capping provision violates the Supreme Court’s Citizens United doctrine.
In enforcing the provision, the state Election Law Enforcement Commission (ELEC) requires a political committee — any group of two or more people raising or spending $2,400 or more whose "major purpose" is promoting political candidates — to register with the state.
It also bars a committee from accepting more than $7,200 from an individual, union or corporation.
Willful violations carry fines of up to $200,000, and ELEC is authorized to issue subpoenas, lodge civil suits or refer matters to the state Attorney General’s Office for possible criminal prosecution.
Because New Jersey is one of just two states to hold legislative elections in 2013, the fund had planned to spend more than half of this year’s budget on New Jersey races.
In February, the fund asked ELEC for an opinion on its status under the provision and whether it could accept unlimited contributions.
On March 21, ELEC concluded it must register as a political committee and comply with the contribution limit.
The agency acknowledged concerns presented by federal case law, including Citizens United v. FEC, 558 U.S. 310 (2010), which held contribution limits violate free-speech rights.
But ELEC said it must continue to enforce the limits because the provision still stands.
The matter, Fund for Jobs, Growth & Security v. ELEC, 13-cv-2177, has been assigned to U.S. District Judge Michael Shipp and U.S. Magistrate Judge Lois Goodman.
The fund’s local attorney, Angelo Genova, said the provision contravenes Citizens United.
"Accordingly, the Supreme Court has held that the government lacked a compelling basis to bar particular speakers (such as corporations and unions) from sponsoring independent expenditures," Genova wrote.
He also cited rulings by appeals courts in the Seventh, Ninth and D.C. circuits that organizations may accept and solicit unlimited donations from corporations and unions to make independent expenditures.
Genova said the fund is "ready, willing and able" to accept unlimited contributions but is being prevented from doing so.
Instead, it must "choose between two undesirable courses of action": register as a political committee and limit fundraising to $7,200 per source, or limit overall spending so it no longer would be considered a political committee under the law.
"The longer the Fund remains subject to the contribution limits imposed … the greater the impact on the Fund’s ability to engage in independent expenditures to influence New Jersey elections in 2013," Genova wrote.
The fund "must have the opportunity to solicit and accept contributions in any amount from individuals, corporations, and unions in order to plan and prepare for its independent expenditures in the weeks and months before the election," he added.
The fund asserts violations of the First Amendment and the Fourteenth Amendment’s equal protection clause. It seeks injunctive relief, a declaration that the provision and its implementing regulations are unconstitutional, and attorney fees under 42 U.S.C. 1988(b).
Aside from ELEC, the suit also names chairman Ronald DeFilippis, executive director Jeffrey Brindle and other individuals.
Genova, of Genova Burns Giantomasi & Webster in Newark, defers comment to lead counsel, Marc Elias of Perkins Coie in Washington, D.C., who says: "There have been plenty of other states that had laws [limiting independent expenditures] before Citizens United."
"Some of those jurisdictions, on their own initiative, reinterpreted their statutes," and those that have been challenged in court have been struck down, Elias says.
He declines to identify the New Jersey races in which the fund plans to become involved.
ELEC spokesman Joseph Donohue says the agency had not appointed defense counsel as of Wednesday. He declines to comment on the suit.
The fund is registered as a political organization under section 527 of the Internal Revenue Service. It is an "expenditure-only" political action committee that supports or opposes candidates through ads but does not directly contribute to, spend money on behalf of or otherwise coordinate with campaigns.