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State of Elections

A student-run blog from the Election Law Society

Maine Ballot Initiative Aims to Tee Up a Supreme Court Ruling on Super PACs

November 5, 2024

By: John Thayer

When Maine voters go to the polls on Tuesday, November 5, they will get to vote on a ballot initiative that poses a straightforward question: “Do you want to set a $5,000 limit for giving to political action committees that spend money independently to support or defeat candidates for office?” Maine Question 1, the Limit Contributions to Super PACs Initiative, has received bipartisan support. According to a recent poll from Pan Atlantic Research, 69% of respondents said they intend to vote “yes” on the initiative (limiting PAC contributions), with 15% of respondents saying they intend to vote “no” and 16% indicating they were undecided. Maine’s federal congressional delegation (consisting of Democrats Chellie Pingree from the 1st District and Jared Golden from the 2nd District) support the initiative, as do state legislators on both sides of the aisle. 

While the initiative seems poised to pass by a healthy margin, the more important question is whether it will survive legal challenges. A lawsuit is not just inevitable—it was the purpose of the advocates behind getting the initiative on the ballot. Harvard Law School Professor Lawrence Lessig, who has championed similar efforts in other states through his nonprofit Equal Citizens, told the Maine Morning Star, “We’ve been trying to tee up this question to the Supreme Court for a long time” and that “[t]he plan is to instigate a lawsuit with the ultimate goal of getting the Supreme Court to rule on Super PACs.” The organizers’ goal is to create a conflict between Maine law and federal precedent in order to get the U.S. Supreme Court to hold that contributions to super PACs may be regulated. 

To understand this strategy, some legal context is necessary, starting with the U.S. Supreme Court’s 1976 decision in Buckley v. Valeo. In Buckley, the Court held that political contributions may be regulated when there is a risk of “quid pro quo” corruption—i.e. a political donation to a candidate in exchange for a political favor from the candidate. The Court, however, held that there was no such risk in the context of donations to independent expenditures, thus striking down the law in question’s ceiling on such expenditures. In 2010, the Court held in Citizens United v. Federal Election Commission that while the “quid pro quo” considerations justified limiting expenditures from corporations or unions made out of their general treasury funds, a “separate segregated fund,” i.e. a PAC, could not be subject to such limitations. Just three months later, in SpeechNow.org v. FEC, the D.C. Circuit held that contributions to PACs cannot be regulated either, so long as the PAC is independent—i.e. it does not coordinate with any campaign. That decision gave rise to the “super PAC,” which can both receive and spend unlimited amounts of money but can’t contribute directly to or coordinate with candidates. It is this decision that Question 1’s proponents argue was wrongly decided and should be overturned in a case stemming from a challenge to Question 1 that they hope will make it all the way up to the nation’s highest court. As the Portland Press Herald explains, “[a]dvocates for the referendum believe that unlimited contributions to PAC[s] that make independent expenditures either for or against a candidate can lead to the same type of quid-pro-quo corruption as direct candidate contributions, since they’re often funded by a small number of wealthy donors.” 

Although the initiative has broad bipartisan support (after all, who is outwardly opposed to reducing the influence of big money in politics?), there is not universal agreement among advocates for campaign finance reform on whether the initiative is a good idea. While Lessig points to the growing cross-party support as a signal that the U.S. Supreme Court will be amenable to limiting contributions to super PACs, Maine Citizens for Clean Elections (MCCE), a nonprofit advocating for campaign finance reform to reduce the influence of corporate spending in politics, is not so optimistic. The group states that while it “wholeheartedly support[s] the aspirations of this bill and believe[s] the U.S. Constitution could and should be interpreted to sustain a functioning democracy, including allowing states and Congress to regulate money in politics,” it does not believe that the Court will rule in favor of Question 1. Rather, the group worries about a legal challenge to the initiative opening “Pandora’s box and lead[ing] to a number of unintended consequences that set back our efforts,” such as the Supreme Court “us[ing] the opportunity to further chip away at the framework of campaign finance reform.” With Question 1 looking exceedingly likely to pass at the ballot box, only time will tell whether the legal strategy will pay off. 

State

Maine