The latest New England effort to limit money in politics looks from a distance like a doomed project, betting on a conservative high court’s appetite to revisit the landmark Citizens United ruling that opened the floodgates to unlimited fundraising and spending. But backers of a Maine ballot measure believe the Roberts court might want a chance to clarify how much influence the wealthy can flex in US elections.  

Efforts to restrict money flowing into super political action committees (PACs), which can raise and spend unlimited amounts of money on campaigns as long as they don’t coordinate with the candidates they back, keep bumping up against the same issue: lower courts consistently declare that under Citizens United, that is simply unconstitutional.  

The landmark US Supreme Court decision in 2010 declared that political spending is protected speech and, unless there is a risk of quid-pro-quo corruption, that restricting the independent spending of corporations, unions, and nonprofit groups violates the First Amendment. 

In his concurring opinion in Citizens United, Chief Justice John Roberts wrote that “the First Amendment protects more than just the individual on a soapbox and the lonely pamphleteer.”  

This week on The Codcast, CommonWealth Beacon reporter Jennifer Smith talks with Harvard law professor and political activist Larry Lessig about an ill-fated attempt to restrict PAC contributions in Massachusetts and the successful ballot effort in Maine. A coalition spearheaded by Lessig thinks it has a shot at convincing higher courts to embrace their legal theory – not to overturn Citizens United, but to embrace an originalist argument that might clarify its boundaries. 

“Though there are Republican super PACs and there are Democratic super PACs, what we’re worried about is there are no working class super PACS versus the rich person super PACs,” Lessig said. “All these super PACs are basically funded by the super super wealthy in America.”  

While individuals can only contribute $3,500 to a federal candidate during an election cycle, Lessig noted that the last cycle puts a somewhat absurd point on the role of super PAC contributions. Elon Musk’s PAC spent about $200 million to help elect Donald Trump, largely funded through Musk’s own contribution of $239 million, and the world’s richest man contributed millions to other PACs backing Republican Senate candidates and Robert F. Kennedy Jr.’s “Make America Healthy Again” message. 

“The idea that the risk of corruption from a $3,300 contribution,” which is where the limit stood in the 2023-2024 cycle, “is greater than the risk of corruption from a $277 million contribution is just crazy talk,” Lessig said. “It’s not any opinion that the Supreme Court has ever uttered.” 

Then-Attorney General Maura Healey’s office rejected a ballot measure in 2022 in Massachusetts that would have capped super PAC contributions to $5,000, arguing that it would violate free speech rights. The matter died without the state’s high court ever getting into the merits, so Lessig turned to the northernmost New England state. 

Maine voters in 2024 overwhelmingly passed a ballot measure limiting Super PAC contributions to $5,000. Super PACs sued and won in the US District Court for the District of Maine. Lessig said an appeal will be filed in October with the First Circuit Court of Appeals in Boston.  

The law’s backers say they not only expected the lawsuit, but climbing the courts was the plan.  

It was “designed to force the legal question,” agreed on by lower courts but never by the US Supreme Court, on whether Citizens United means that someone has the constitutional right to contribute unlimited amounts of money to PACs.  

Spending from all partisan PACs is soaring, Lessig said. 

“There’s no partisan reason to like PACs anymore,” he said, “and I think this Supreme Court would look at the world they’re in right now – where money in politics, Pew reports, is the number one issue Americans’ care about, that we have to fix this if we’re going to fix everything else – and they would look at the kind of corruption that’s in very plain sight right now with the president and everything else going on, and find it very hard to uphold a rule that would continue to fuel all of that corruption.” 

On the podcast, Lessig discusses the intent of the Maine ballot effort (1:40), super PAC use in both parties (8:35), and how he hopes the US Supreme Court would rule (29:30).