Maine Morning Star: Curious about the campaign finance petition you saw at the polls?
As voters exited polling locations across the state on Tuesday, many encountered petitioners gathering signatures for an act to limit contributions to independent political action committees, otherwise known as super PACs.
The petition was issued a little more than a week before Election Day, on Oct. 27, and as of Thursday, had 67,000 signatures — enough for a referendum — although the group behind the initiative is aiming for 75,000. The ballot question committee in Maine, Citizens to End super PACs, is chaired by Cara McCormick, co-founder of The Committee for Ranked Choice Voting.
But, the effort stems from legal scholar and political activist Lawrence Lessig.
“We’ve been trying to tee up this question to the Supreme Court for a long time,” Lessig told Maine Morning Star. Lessig, the Roy L. Furman professor of law and leadership at Harvard Law School, runs the non-profit EqualCitizens.US, which has attempted similar initiatives in other states.
The plan is to instigate a lawsuit with the ultimate goal of getting the Supreme Court to rule on super PACs.
The proposed bill in Maine would limit contributions to $5,000 in a calendar year from individuals, PACs and businesses to super PACs. If enacted, the expectation is that legal groups will challenge it almost immediately. Regardless of how the district court in Maine rules, it would be appealed to the United States Court of Appeals for the First Circuit, which Lessig is confident would uphold the bill because of what he sees as a core flaw in the lower court case decision that established super PACs 13 years ago.
If the First Circuit acts as Lessig anticipates, the Supreme Court could take it up and ultimately rule to rid the U.S. of super PACs.
“The fastest path would be to imagine it decided by July 2026, which is the 250th anniversary of the Declaration of Independence,” Lessig said, “so maybe they could declare us independent of super PACs on the 250th anniversary, or they could trigger the next revolution, either way.”
Core flaw in case that established super PACs, legal scholars argue
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 v. Federal Election Campaign Act.
Three months later, in SpeechNow.org v. FEC, the DC Circuit Court upheld that contributions to PACs cannot be regulated, either, so long as the PAC is independent. That decision essentially created the “super PAC,” which can receive unlimited contributions but can’t contribute directly to candidates. Other lower federal and state courts followed suit and the ruling was never reviewed by the Supreme Court.
But, Harvard Law professor emeritus Larry Tribe and Chicago Law professor emeritus Al Alschuler, a Maine resident who submitted the application for the petition alongside McCormick, argue that the reasoning behind SpeechNow is incorrect.
They say large contributions to PACs inevitably create a risk of quid pro quo corruption, given that donors and candidates have the opportunity to collaborate even if a PAC is independent. (This is the pattern alleged against New Jersey Sen. Robert Menendez.)
Therefore, Tribe and Alschuler argue, contributions to PACs can be regulated by Congress.
Local reform advocates opposed
Previous attempts at a state-level challenge to the Speechnow ruling reached dead ends in Massachusetts and Alaska. But on a recent trip to Maine, Lessig and others realized the state’s citizen-initiated referendum process presented an opportunity to get past hurdles they’d encountered in other states.
The initiative, however, is not being endorsed by Maine Citizens for Clean Elections because they do not agree with the legal analysis that the proposal is based on. Executive director Anna Kellar said after consulting their attorneys and other experts they concluded that the initiative was a long-shot at best and, at worst, could open up an opportunity for the U.S. Supreme Court to instead loosen campaign finance restrictions.
“We do want to see a limitation on contributions to PACs, and we believe that the courts have wrongly decided cases that make those limits unconstitutional,” Kellar said. “However, we don’t currently see a path to the courts overturning those decisions, and we do see a real risk of getting distracted from the concrete gains that can be made here in Maine.”
Instead, MCCE will be directing its effort toward the expected proposal of a Constitutional Amendment, given the passage of Question 2 on Tuesday, as well as building on its existing legislative agenda.
Lessig disagrees with criticism that the effort is a long-shot. He believes it to be almost guaranteed the initiative will pass, if not in the legislature then by the voters, given Maine’s support for Question 2.
As for how the Supreme Court will rule, while nothing is guaranteed, he said he is certain that there is a core flaw in SpeechNow and is confident the justices will agree.
He dismissed concerns that the Supreme Court’s conservative majority would loosen campaign finance regulations, pointing to arguments from originalists like Republican Sen. Josh Hawley of Missouri, who believes that Congress has the power to limit how corporations spend their money.
Broad support in Maine
Public Policy Polling surveyed 556 Mainers in September to assess whether the state would be supportive of the initiative. Based on that sample, 78% of Mainers supported establishing limits on the size of contributions to super PACs.
The nearly 50,000 signatures gathered in support of the initiative on Election Day shore up this polling.
Lessig spent 13 hours on Tuesday in Hollis, where he said he collected 352 signatures for the initiative. Rep. Grayson Lookner (D-Portland) also spent Election Day gathering signatures. By the day’s end, he had close to 600 signatures, Lookner said.
“The unmitigated spending in elections by the billionaire big business interests is really undermining our democracy,” Lookner said, “and although I’m no legal mind, this seems to be one way to limit how much money is coming into our elections in Maine.”
While polling and signature gathering suggests broad support for the initiative, its out-of-state origin has drawn some criticism, including from MCCE.
“Our Maine values call on us to cultivate grassroots activism and build these campaigns from the people up,” Kellar said. “This effort instead looks like another high-budget, big-money referendum campaign underwritten by out-of-state actors.”
In Tuesday’s election, Maine voters overwhelmingly rejected a ballot measure that would have aligned the state Constitution with the U.S. Constitution in allowing people from out of state to gather petition signatures. The vote does not change federal law, but Mainers’ presumably strong opposition to out-of-state petitioners speaks to public sentiment on the matter.
Lessig expects they’ll reach their 75,000 signature goal by the end of the week. If the legislature doesn’t pass the initiative next session, Citizens to End super PACs intends to campaign through next fall to pass the initiative in the 2024 election.
