A FIGHT OVER unlimited super PAC money that was blocked from Massachusetts voters found its way back to Boston anyway.
On Wednesday, it landed at the John Joseph Moakley federal courthouse, where a three-judge panel of the US Court of Appeals for the 1st Circuit spent nearly an hour hearing arguments on whether Maine can enforce a voter-approved $5,000 cap on contributions to super PACs.
Judges seemed open to the idea, if they could find a way to square the contribution limits with the landmark Citizens United ruling that established First Amendment protections for independent election spending.
Citizens United v. FEC was the 2010 US Supreme Court ruling that protects corporations, unions, and other groups’ First Amendment speech right to spend unlimited money independently on elections, apart from donations directly to candidate campaigns. Independent expenditure political action committees, shorthanded as super PACS, are political organizations that can raise and spend unlimited money on elections as long as they don’t coordinate directly with the candidates they support.
Backers of the Maine law say it is consistent with efforts to avoid the “appearance of corruption” that can make voters feel like their elected officials are for sale to the highest bidder. These corruption concerns, they note, are why direct campaign contribution limits exist.
Individuals can only give a campaign for federal office $3,500 directly per election. But individuals can give unlimited amounts of money to a super PAC that could then, independently, spend any amount supporting a candidate through things like advertising.
Critics, including backers of the Maine law, argue that super PAC spending is rapidly ballooning and becoming so associated with particular candidates and their pet issues that the principle of limiting campaign contributions should also apply to PAC contributions.
Judges appeared receptive to Maine’s argument, which attacks a “precursor” to the PAC spending its money.
“Does Senator X like to have the super PAC that everyone is aware likes him or her to be well funded?” posited Judge Seth Aframe. Regardless of whether the politician can control how PAC money is spent, of course they would like the PAC to be flush, he said.
This does seem to raise the risk that a candidate “might do something to get it well funded,” he said.
Efforts to rein in super PAC finances keep hitting the wall of Citizens United and the flurry of lower court cases that followed.
A federal appeals court in Washington, just months after Citizens United was decided, concluded in SpeechNow.org v. FEC that contribution limits on super PACs violate the First Amendment, too, since the PACs themselves only make independent expenditures. Every other circuit to consider a similar cap has agreed.
Neal Katyal, representing Equal Citizens, the group that helped write the Maine law, told the Appeals Court on Wednesday that voters there decided “by the largest vote in the state’s 206-year history, that unlimited super PAC contributions were corrupting their elections.” It would be absurd, he said, for the First Amendment to “leave them powerless” to address that perceived corruption.
But Charles Miller of the Institute for Free Speech, challenging the law, told the judges that only money that ends up in a candidate’s actual control creates a corruption problem the state can regulate. Money to a legally independent super PAC is “simply influence and access.”
“No matter how ugly people think that is,” he told the panel, “it’s constitutionally protected.”
Larry Lessig, the Harvard law professor who leads Equal Citizens, tried the super PAC by ballot approach in Massachusetts first.
Lessig and other campaign finance reform advocates wanted to put a question on the 2022 state ballot asking voters whether Massachusetts should cap super PAC contributions at $5,000. Then-Attorney General Maura Healey’s office refused to certify the citizen petition, finding the cap likely to be an unconstitutional infringement on free speech.
Maine has no pre-clearance certification step involving the attorney general like Massachusetts, which was one reason to make a play there.
The state’s voters approved the cap in 2024 with nearly 75 percent support. Two conservative PACs, Dinner Table Action and For Our Future, sued immediately. A federal judge in Maine struck the law down last year, citing SpeechNow. Maine and Equal Citizens appealed.
Regardless of how the Appeals Court in Boston rules on the case, backers of the ballot measure say they hope to ultimately reach the US Supreme Court. Lessig and his group want the highest court to be forced to say clearly if Citizens United covers contributions as well as expenditures.
Every other circuit to consider the question ruled against contribution caps shortly after SpeechNow, but super PAC spending has since exploded from $86 million at the time of SpeechNow to $6.9 billion in the most recent federal election cycle.
Katyal suggested that this unbelievable surge of spending makes the case for courts to step in.
“If not now, when?” Katyal asked the panel. “And if not on this record, what record are we going to need?”
Wednesday’s oral arguments arrived in the shadow of a recent US Supreme Court ruling on campaign finance, which overturned a half century of election law restricting a political party’s spending on campaign activities in coordination with candidates.
While the 6-3 opinion in National Republican Senatorial Committee v. Federal Election Commission is mostly focused on political party spending, rather than contributions, super PACs did get a shout-out.
“Donors can and do send their funds to super PACs and other outside groups that have a First Amendment right to receive and spend unlimited money to support their independent political speech,” Justice Brett Kavanaugh wrote for the majority.
Critics and backers of the Maine law exchanged a flurry of new arguments that the Supreme Court’s latest ruling either put an end to the debate or tackled an entirely different issue.
Miller, the opponents’ attorney, wrote in a filing that the high court made clear these PACs “unequivocally have a constitutional right to receive unlimited contributions. Game over.”
Lessig countered in a response letter that this interpretation is “wrong,” and shows opponents’ “continued failure to distinguish between the constitutional limits on expenditures and contributions.”
