Question 1 on the 2024 ballot asked voters to limit the amount of dark money spent in state elections. (Photo by Emma Davis/ Maine Morning)
The next piece of the puzzle for the group hoping to get the U.S. Supreme Court to establish greater regulations on money in elections was laid on Wednesday.
One of two expected appeals were filed in the First Circuit Court of Appeals in Boston after a federal district court in July ruled that a 2024 Maine law overwhelmingly passed by voters was unconstitutional. The law placed limits on contributions to political action committees that independently spend money to try to support or defeat candidates, commonly referred to as super PACs.
The brief filed early evening Wednesday is from the committee behind the referendum, Republican-turned-independent state Sen. Rick Bennett and the nonprofit Equal Citizens, spearheaded by legal scholar Lawrence Lessig who has been attempting to bring this issue to the high court for years. Another is due from Attorney General Aaron Frey on behalf of the state of Maine by midnight.
While Frey’s arguments are not yet known, those behind the referendum make the case in their brief that the 2010 Supreme Court decision Citizens United v. Federal Election Commission actually allows for super PACs to be regulated and that a later decision that interpreted otherwise — and permitted unlimited spending by corporations — had misinterpreted the landmark ruling.
It’s an originalist, conservative legal argument, which is notable since the party that instigated the lawsuit is made up of conservative political action committees.
Charles Miller of the Institute for Free Speech and Joshua Dunlap of Pierce Atwood (now-nominee for the First Circuit) filed the lawsuit in U.S. District Court for the District of Maine in 2024 on behalf of Dinner Table Action, which was founded by state Rep. Laurel Libby (R-Auburn) and activist Alex Titcomb, and For Our Future, which is run by Titcomb. They argue that the law restricts free speech.
These dueling arguments have been known, but in an interview ahead of the filing Wednesday Lessig told Maine Morning Star that the intervener’s brief also argues that a component of the recent district court opinion rejects the reasoning that served as the foundation for super PACs, aiding their case.
After reviewing the filing on Wednesday, Miller said he disagrees. He’ll be issuing his full rebuttal on behalf of the plaintiffs next month.
Before then, friend of the court briefs are expected next week and could add additional layers to the argument.
After oral arguments in early 2026, a ruling could come before the summer.
If the court decides in favor of the law, the issue could be in the Supreme Court by the fall of 2026. If the First Circuit rules otherwise, the path to the high court would become more difficult.
How the district court opinion plays in
Since Buckley v. Valeo in 1976, the Supreme Court has allowed contributions to be regulated when there is a risk of “quid pro quo” corruption, essentially a favor for a favor. In the case of elections, if there is a risk someone could be making a donation to a candidate in exchange for a favor, then Congress can regulate that contribution. In 2010, the Supreme Court extended this reasoning to corporations and unions in Citizens United, ruling that those entities can otherwise spend unlimited amounts of money on elections because they have free speech rights under the First Amendment
Three months later, the D.C. Circuit Court of Appeals ruled in SpeechNow.org v. FEC that contributions to PACs cannot be regulated either, as long as the PAC is “independent” of the campaign.
The interveners argue SpeechNow misinterpreted Citizens United. The ruling was never reviewed by the Supreme Court, though other lower federal and state courts agreed. In those cases, the courts ruled that contributions to independent political action committees created no risk of “quid pro quo” corruption, so they couldn’t be regulated.
But in U.S. Magistrate Judge Karen Frink Wolf’s opinion in the district court in July, she essentially conceded that there is a risk of corruption. “Contributions to independent expenditure PACs can serve as the quid in a quid pro quo arrangement,” she wrote.
Lessig said that finding makes it “the most extreme opinion of any federal court in the history of this jurisprudence.”
However, Frink Wolf went on to write, “I am not persuaded that the Defendants’ arguments on this point can be squared with Citizens United.”
The state of Maine is giving the Supreme Court a gift. You’re saying to John Roberts, here’s a case where you could decide this case and the whole country will say, ‘Huzzah.’
– Lawrence Lessig
That’s where she and Lessig diverge.
The interveners are not seeking to change the limits on expenditures in Citizens United. They think the question the Maine referendum raises — whether contributions to a committee that makes independent expenditures can be limited — is not answered in Citizens United.
“Nothing in Citizens United or in any subsequent Supreme Court case disturbs the longstanding precedent securing to the people the power to prevent quid pro quo corruption or its appearance by limiting the size of contributions,” the brief reads.
Under the logic of Citizens United, independent expenditures are uncoordinated and create no risk of quid pro quo corruption, but donations to a committee that makes independent expenditures may or may not be coordinated. Therefore, the interveners argue, they create the risk of quid pro quo corruption and can be regulated by Congress.
“This case gives the courts a chance to correct a 15-year mistake, return power to the people, and begin restoring trust in our democracy,” Bennett told Maine Morning Star.
Miller, the plaintiff’s lead counsel, disagrees with this interpretation.
“They’re trying to focus on the fact that, theoretically, a candidate could solicit a donation for independent expenditure, but the law doesn’t target that,” Miller said. “It targets any contribution for independent expenditure.”
As an example, Miller said someone could corrupt a politican by giving money to his daughter, “but there’s no reporting requirements on donations to daughters of senators.” In that regard, he added, “there are lots of things that can be corrupted, a donation to a presidential library arguably can be corrupted.”
An originalism argument
The overarching point the interveners are trying to make is that the original meaning of the First Amendment would not have blocked state legislatures or the people from limiting the size of contributions to political action committees.
“The Supreme Court has never considered the question of what the original meaning of the First Amendment means in the context of campaign finance jurisprudence,” Lessig said.
In their brief, the interveners argue that founding-era history, the U.S. Constitution and precedent demonstrate that Maine’s interest in combatting “dependence corruption” — defined as “the improper dependence of public officials on deep-pocket interests that the Founders of our Republic viewed as anathema to our democracy” — is sufficiently important to justify upholding limitations on contributions to SuperPACs.
The originalist argument they’re making is typically a conservative one, so Lessig believes it would fare well with the current conservative-leaning Supreme Court. He also believes that’s why the plaintiffs want to prevent that argument from advancing beyond the First Circuit.
“That’s what gave us the new Second Amendment, that’s what overturned Roe versus Wade — it’s originalism,” Lessig said. “But here, it goes against their politics.”
Last week, the plaintiffs filed a motion to dismiss the group’s appeal.
Ultimately, Lessig views the issue of regulating super PACs as a nonpartisan one. Both Republicans and Democrats benefited from hundreds of millions of dollars from super PAC spending last election, Democrats more so than Republicans.
“The state of Maine is giving the Supreme Court a gift,” Lessig said. “You’re saying to John Roberts, here’s a case where you could decide this case and the whole country will say, ‘Huzzah.’”