SCOTUS ruled in Citizens United that citizens - ie: rich citizens - could count on having much louder voices than the rest of us just because they have a lot more money than the rest of us.
Since then (2010), we've seen an ever-accelerating progress towards the plutocracy I've been screaming about for those 15 years.
And I'm not sure what to think about how Buckley v Valeo in 1976 factors in, but it's not unreasonable to think there's some connection, since the dark forces have been chipping away at us for 50 fuckin' years.
Group behind successful 2024 ballot referendum aim to establish new Supreme Court precedent
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.
Two 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.
One of the briefs is from Attorney General Aaron Frey on behalf of the state of Maine. The other is from the committee behind the referendum and the non-profit Equal Citizens, spearheaded by legal scholar Lawrence Lessig, who has been attempting to bring this issue to the high court for years.
Both make the case that the 2010 Supreme Court decision Citizens United v. Federal Election Commission actually allows for super PACs to be regulated.
The brief from the interveners incorporates a second originalism 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 in the first place, aiding their case.
After reviewing the filing on Wednesday, Miller said he doesn’t think that’s novel. 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 state of Maine and interveners argue SpeechNow misinterpreted Citizens United.
The ruling was never reviewed by the Supreme Court, though other lower federal and state courts agreed. In each one of 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.”
That’s where she and those backing Maine’s law diverge.
“The district court further erred by adopting the reasoning of out-of-jurisdiction decisions striking down similar contribution limits,” the brief filed by Frey reads. “Those cases did not bind the district court, just as they do not bind this Court.”
What the state of Maine and the interveners are seeking is not 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 filed by the interveners 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, they argue, they create the risk of quid pro quo corruption and can be regulated by Congress.
Further, Frey’s brief adds that “the district court should have recognized that the changed campaign landscape in Maine and the United States unleashed by SpeechNow supports Maine’s important interest in imposing modest limits.”
Republican-turned-independent state Sen. Rick Bennett, who is running for governor in 2026 and was on the ballot question committee, told Maine Morning Star, that the case in Maine “gives the courts a chance to correct a 15-year mistake, return power to the people, and begin restoring trust in our democracy.”
Another member of the ballot committee, Cara McCormick, said in defending Maine’s new law, “we go to court not in anger but in faith that our democracy will listen to its people and grow even stronger through them.”
Miller, the plaintiff’s lead counsel, disagrees with their 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 making 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.
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.’”
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