| Inside the Court Case that Could End Super PACs |
| Harvard Law professor Lawrence Lessig discusses the years-long legal campaign that could reach the Supreme Court as soon as next year |
| Last week, the U.S. Court of Appeals for the First Circuit heard a
case that could dramatically reshape campaign finance law. |
| The case emerged from a yearslong campaign by legal advocacy
groups and by Harvard Law School professor Lawrence Lessig, who recruited
Supreme Court litigator Neal Katyal to argue it. Along with Maine, they are
defending a state ballot initiative that limits contributions to super PACs. |
| Their argument centers on what they believe is a misreading of
the Supreme Court’s 2010 decision in Citizens United v. FEC, the
infamous case that overturned limits on independent expenditures by
corporations and unions. Shortly after that decision, the U.S. Court of Appeals
for the D.C. Circuit ruled in a separate case — SpeechNow.org
v. FEC — that if you can’t limit expenditures by these groups under Citizens
United, then you also can’t restrict contributions to them. Other circuit
courts have adopted that reasoning. |
| But according to Lessig, Katyal, and their allies, the courts’
logic has a basic — and fatal — flaw. The outside groups may not be
coordinating with candidates, but there is still a very real risk of corruption
because donors to the groups can coordinate with candidates on their own. |
| Lessig and I spoke about the case, the history leading up to
it — including failed efforts in Alaska and Massachusetts before the Maine
ballot initiative — and his view that some of the originalists on the Supreme
Court could end up siding with them if (or when) the case reaches the justices,
which could happen as soon as next year. |
| “I think [the justices] could write this opinion and just make
it seem like everybody’s kind of crazy that they thought this was a hard case,”
Lessig told me, “which will be fun because I’ve lived through seven years of
people telling me I’m insane — and that I don’t even understand how to read the
law — because I’ve suggested that maybe there’s actually another side to this
question.” |
| This interview has been edited for length and clarity. |
|
| It seems like the oral argument went pretty well. How do
you feel? |
| I’ve seen a lot of oral arguments. I’ve never seen a better
presented oral argument than this one. |
| That’s in part because we had truth on our side. We’re right
on the law. |
| It’s in part because the judges were extremely well prepared.
I can’t tell you how many times I’ve gone into an oral argument and listened to
the judges and just realized they just haven’t even read the briefs. This is a
difficult area of law, and they really knew what they were talking about. |
| The First Circuit hasn’t addressed this issue before, so
you’re not actually asking them to change the law because there is no
controlling law on this subject. But can you talk a little bit about the nature
of the case — what you’re trying to do and how other courts have resolved the
question? |
| The important thing to remember is that Citizens United
was decided in January of 2010. The question it addresses is whether, if
expenditures are independent, they can be limited. |
| It’s really important to put that in a conditional sense,
because sometimes people talk about it as if the Supreme Court said you are
free to spend unlimited amounts of money, no matter what. |
| That’s not true. You’re free to spend unlimited amounts of
money so long as you don’t “coordinate” with the campaign. If you are Elon Musk
and you sit down with the candidate and you say, “Tell me when it would be good
to run ads about this particular issue,” and then you go out and spend $10
million, well, you have spent about $10 million more than you’re allowed to
spend because that spending is actually a contribution because you’ve
coordinated. |
| I sometimes think that [Citizens United] is the most
misunderstood case in the history of Supreme Court cases because everybody’s so
angry about it and thinks it’s so unrealistic. But that’s because they don’t
actually understand what it was saying. |
| What it was saying was if you follow the law, if
you obey the rule that says you are independent, then there’s no reason we have
to regulate you because there’s no risk of quid pro quo corruption — if you
actually are independent. |
| The problem is most of us hear this and say, “Yeah, they’re
really independent. That’s just not true.” |
| But that’s not a problem with the Supreme Court. That’s a
problem with the fact we don’t have an enforcement mechanism that’s actually
out there making sure that these people are independent. |
| Months after [Citizens United], SpeechNow
[from the D.C. Circuit] extends the reasoning in a way that obviously reveals a
logical error in its thinking. |
| [The court] basically says if you can’t limit expenditures
because there’s no risk of quid pro quo corruption, it follows as a matter of
law that you can’t restrict contributions because they too don’t create a risk
of quid pro quo corruption. |
| As Neal [Katyal] said in the argument, there are three players
here. One is the donor, one is the candidate, and one is the committee. Citizens United was saying: the committee and the candidate, they have to be
independent. And if they are independent, there’s no risk of quid pro quo
corruption. |
| But SpeechNow is not about the committee and the
candidate. SpeechNow is about the candidate and the donor. |
| From the fact that the committee is independent from the
candidate, you can’t say anything about whether the donor is independent
from the candidate. |
| Imagine you want to give $100,000 to try to get somebody
elected as governor in the state of Maine. You sit down with the campaign, and
the campaign tells you they need the money to run in August. So you spend
$100,000 in August. What Maine law says is that that spending in August is
actually now a contribution, because you did it in consultation with the
campaign, and therefore it’s treated as a contribution, not an independent expenditure. |
| But if instead you did exactly the same thing — you sat down
with the committee and you said, “When do you need this stuff spent?” and they
said, “In August,” and then you wrote a check to a super PAC and the super PAC
then spent the money in August — you’ve effectively coordinated to know when
you need to send the money in. That is not affected by the fact that you had
that coordination. That is just a donation. The donation remains a donation,
even though you’ve effectively coordinated. |
| That demonstrates as clearly as you can, I think, why one
doesn’t follow from the other. But they made this logical mistake. |
| By 2013, five circuits had followed the D.C. Circuit. [That]
was before the first super PACs were out there. |
| [In] 2014, I had a super PAC to end all super PACs. It was one
of the biggest super PACs in the election cycle. |
| The point is nobody can understand how these things are
functioning, so the logical error isn’t obvious. But very quickly, the logical
error becomes obvious because people begin to see — like with [former U.S.
Senator Bob] Menendez. |
| What’s Menendez [about]? Some rich guy comes
to Menendez, just as I described with the governor’s guy, and says, “If you
do some favors for me, I’ll send a bunch of money to your super PAC.” |
| The super PAC is completely independent. They don’t know
anything about the relationship of Menendez to this donor. They just get a
check, so the super PAC remains Citizens United compliant. But
the donor and Menendez had engaged in a relationship that creates the risk of
quid pro quo corruption. |
| That’s exactly the sort of thing the Supreme Court has said
you have the right to do something about. |
| The critical thing is [that] in a flash, the law of the nation
is settled. The Second Circuit in 2013 writes some ridiculous thing to the
effect that there’s never been a question of law agreed to by so many courts —
that it’s obvious, and that there’s no way you can question this thing. But
they’re resolving it before anybody knows what they’re talking about. |
| That’s what created this problem. |
| Those other circuit courts are not the circuit that you’re
in, but any time the circuit courts coalesce around a proposition of law, that
carries a super-precedential kind of weight. You’re effectively trying to
persuade them to sharply disagree with their colleagues in the other circuits. |
| One way to see how to make that argument is every one of those
circuit courts repeated the same syllogism that SpeechNow did. They all
said if there is no risk of corruption with the expenditure, there can be no
risk of corruption with a contribution. |
| Our district court judge is the first district court judge to
say, “Sorry, no, this is not right. There is, in fact, a risk of quid pro quo
corruption with the contribution.” |
| The facts have changed. They made that decision under [the
wrong] assumption. |
| This court would be the first court knowingly to make this
mistake. The question is
whether eight circuits getting it wrong means you have to get it wrong now that
you realize it’s clearly wrong. |
| | | “The question is whether eight circuits getting it wrong means you have to get it wrong now that you realize it’s clearly wrong.” |
|
| The lower court judge’s conclusion was that the arrangement
doesn’t have to be totally incorruptible, but the danger of corruption is
substantially diminished to the point that the government’s anti-corruption
interest is insufficient to displace First Amendment protections. |
| This is an area of law where judges assert things as if
they’re true on the assumption that everybody follows the law. |
| Right. Just put real numbers there. |
| The law is allowed to limit my giving $10,000 to a candidate
for governor. But I’m allowed to give $10 million to the candidate for governor
[through a super PAC] because I’m further away. |
| Okay, but $10 million certainly is big enough that the fact
that I’m further away doesn’t really compensate for the fact that it’s wildly
more significant than [the direct contribution]. |
| You’ve been doing this for a while — litigating in this
area, working in this area — so it’s not your first rodeo. |
| This particular project has been going on for quite some
time. Can you talk about its genesis and the amount of time, money, and
forethought that needs to go into setting up a legal challenge like this? |
| I clerked for [former Supreme Court Justice Antonin] Scalia.
That means that every question I look at, I have to look at through an
originalist framework — not because I would embrace that approach if I were
picking completely separately, but the point is, especially now when six
justices say they are originalists, it seems like the right framework to
embrace. |
| Way back in 2013 or 2014, I started recognizing that, from an
originalist perspective, this is an easy question. There’s just no doubt that
from an originalist perspective, Congress should have the power — or the state
of Maine should have the power — to make these kinds of regulations. |
| … |
| From my perspective, it’s always been a fight about getting
them to understand how the original meaning tilts strongly against this
jurisprudence. And they’ve got to figure out what they’re going to do to
accommodate it. Now, we’ve never pushed the argument that I think is the
logical implication of this: that they ought to overturn [Buckley v. Valeo]. |
| And I would say if women don’t have the fundamental right to
choose whether to terminate a pregnancy or not, because that was not the
original meaning of the Constitution, then that other case decided in the 1970s
— Buckley v. Valeo — should mean that billionaires don’t have a
constitutional right to buy elections. Both of them follow if you’re going to
embrace originalism. |
| We’ve never pushed that far. |
| What I’ve said from the very beginning is that if you’re going
to say that the standard is “corruption” — a standard you pulled out of thin
air — at least it should be corruption that the framers would have recognized. |
| The framers, of course, didn’t like bribery, but that’s not
what they were obsessed with. What they were obsessed with was the corruption
of institutions of representative democracy. |
| [James] Madison said we’d have a house that would be
“dependent” — dependent is the critical 18th-century word — dependent on “the
people” alone. He said in Federalist No. 57 that by “the people,” he meant “not
the rich more than the poor.” |
| What have we built? We have built a system where these representatives are dependent on the
rich more than the poor. You don’t get anywhere, you don’t survive
anywhere, unless you’ve made the rich happy first. |
| | | “We have built a system where these representatives are dependent on the rich more than the poor.” |
|
| We have corrupted the institutional design. That’s the
argument I’ve been making forever. |
| Free Speech for People, which was born after Citizens
United, had been developing an argument grounded in a paper that Al
Alschuler, Larry Tribe, Richard Painter, and Norm Eisen wrote. [It] was
basically this quid pro quo argument — that under Citizens United,
you ought to be able to regulate contributions because contributions are not
expenditures. |
| So Free Speech for People had been making that argument. They
made that argument in the D.C. Circuit, trying to get the court to overturn SpeechNow.
Of course, the court didn’t give them an opinion; it just ignored the argument. |
| Always a sign of confidence in your reasoning. |
| Yeah, that’s right. [Laughter] |
| And so after [that], we tried the Alaska case, where we got
the lower court to acknowledge the originalist argument. The [Alaska] Supreme
Court reversed it. |
| Then Free Speech for People and Equal Citizens decided to work
together. Free Speech for People didn’t want to make the originalist argument
because it’s not politically correct, but I thought we had to make the
originalist argument. So we joined together to try to get a ballot initiative
in Massachusetts, and the attorney general, who’s now the governor, said no —
it violates Citizens United. |
| We had to appeal to the Massachusetts Supreme Judicial Court. I
made the originalist argument, and Free Speech for People made the core
argument we’ve been making — the quid pro quo argument. |
| … |
| The Supreme Judicial Court of Massachusetts said, “Well, we’re
not going to decide your First Amendment question until you gather signatures.” |
| It was [effectively] a million-dollar filing fee. We would
have to gather signatures to have the privilege of knowing whether we were
allowed to bring the initiative to the people to be voted on. |
| In the end, I was actually very happy that happened, because
then I was at dinner in Maine … and Rick Bennett was there — a [state]
Republican senator, now an independent candidate for governor. I told him this
story — the fight to end super PACs — and he said, “Why don’t we bring the
initiative in Maine?” |
| Maine doesn’t have a preclearance requirement. Maine is
actually a better state to bring the initiative because it’s purple. |
| The lawyers for the state of Maine seem content to leave the
originalist argument entirely to you. Why is that? |
| I think that there’s a political cost here. |
| Originalism
has been quite damaging to certain interest groups. Obviously, if you’re in
politics, that’s a salient thing. That’s why Free Speech for People
refused to join together with us on one petition to get a ballot initiative on
the Massachusetts ballot — because they didn’t want it to be associated with
originalism. |
| | | “Originalism has been quite damaging to certain interest groups. Obviously, if you’re in politics, that’s a salient thing.” |
|
| My view is we don’t pick the views of justices who have life
tenure. We just have to argue to them. |
| [The state of Maine was] happy to allow us to intervene, so we
made a motion and the judge allowed it. |
| As a litigation matter, if you have the argument available
to you, you want to advance it or even just make sure you are addressing it. |
| One problem with originalism is that it often seems
insincere. I think the
Trump immunity decision blows up whatever claims the six Republican
appointees on the Supreme Court have about being truly wedded to originalism or
textualism. That is a decision that has no basis in the history surrounding the
drafting of the Constitution, the framers’ expectations when they wrote it, or
the text. |
| I expect a lot of people will think, “Yes, this is quite
clever, but let’s be serious. This is still the same six Republican
appointees.” |
| You’ve got to think about the justices individually, right? |
| I clerked for Scalia early in his career. And there were any
number of times where there was a conflict between the conservative thing to do
and the originalist thing to do, and each of those times, after some struggling
with his clerks — we would try to push him to be consistent — he did the
originalist thing. |
| I think that there are justices on this court who are Scalia
wannabes. I mean that in the best possible sense. I think [Amy Coney] Barrett
and [Neil] Gorsuch, in particular, want to demonstrate that their philosophy is
a philosophy, not a politics. |
| There’s a reason to try to appeal to the principle here that
they should be living up to. That’s number one. |
| Number two: The move in campaign finance is that these guys
want to go even more libertarian. |
| What they would love to do is just blow up everything. They
would like to say there should be no limits at all, even for direct
contributions. |
| That has no basis at all in the original meaning of the
Constitution. |
| … |
| We at least have built up a predicate for saying, if you’re
going to be principled at all in your conservative position here, you cannot go
more libertarian. There’s no legal basis for that at all. |
| I’m not saying [Samuel] Alito or [Clarence] Thomas are likely
people to get here, but I do think that Barrett and Gorsuch are fair game in
this fight. |
| I also think, from the perspective of [Chief Justice John
Roberts], like we’re giving the chief a gift. We’re giving the chief a chance
to say, “People have said Citizens United is the worst decision
in the history of the Supreme Court. Cite Bernie Sanders a thousand times. We
disagree, and we actually reaffirm the principle of Citizens United.
But nothing in Citizens United says anything about whether you
can limit the size of contributions, and of course you can limit the size of
contributions. Therefore, Citizens United is right, SpeechNow
is wrong, and super PACs can be abolished.” |
| If the court did that, the world would say “huzzah.” The world
would love the court. |
| The point is they are totally saving face. They didn’t create super PACs.
They didn’t make this mess. |
| | | “They didn’t create super PACs. They didn’t make this mess.” |
|
| So they get to say, “We didn’t make this mess. And there was
never a [circuit] split, so we didn’t take it up. Now there’s a split. We take
it up. We resolve it and super PACs are gone.” |
| Either side will take this to the Supreme Court, I presume,
if it loses. How quickly could that happen? |
| The First Circuit, unfortunately, can be really slow, but if
the First Circuit decides this by the end of this year, we could be in the
Supreme Court by the end of next term. By the summer of 2027, the court could
resolve this. |
| It’s really important to me that the court resolves this in
’27, because if it gets close to 2028, there’s going to be all sorts of reasons
why they would not want to do anything radical because they’re in the middle of
an election. |
| The intersection of the timelines poses an interesting
little question, because there could be a Democratic candidate in the 2028
primary season who is earnestly campaigning for Supreme Court reform — a
well-funded, credible candidate, or maybe a bunch of them. |
| Doing Citizens United 2.0 in the middle of
all that would, from an institutional self-preservation perspective, be
extremely stupid. |
| Exactly. |
| Let’s wrap it up here: My rule of thumb is that if you are
really rich in this country, you can kind of do whatever you want in the area
of campaign finance law. You just have to know the right vehicles and navigate
the legal terrain. |
| Doctrinally, how do you think about it? |
| If you just look at where the winds have been, it seems like
it’s all in the direction of “you can do whatever you want.” |
| And a critical part of this case is something the court has
never really fully articulated: the appearance-of-corruption part. In the oral
argument, we were really focused on [that]. |
| … |
| We actually brought in a very sophisticated, gold-standard
social science analysis to figure out, “Can you really say that there’s an
appearance of corruption given the size of the contribution limits?” Chris
Robertson did this randomized vignette study. |
| It’s really astonishing because it turns out that if you cap
contributions at $5,000 or less, the public is pretty okay with the system. But
once you [go above] $5,000, there’s a huge increase in the level of cynicism
until you get to this world of no contribution limits at all. |
| Everybody thinks this system’s corrupt. That’s where we are
right now. |
| The
Brennan Center report that came out [in June] basically said that more than
90% of Americans — across six different dimensions of corruption — think that
our system is corrupt. |
| … |
| How much more do you need before you’re willing to say there’s
an appearance of corruption? Buckley itself directly says that there’s
an appearance of corruption where contributions are unlimited. Well, that’s
what we’ve got — a system where contributions are unlimited. |
| … |
| I think [the Court] could write an opinion that says, in
effect, “I don’t know why this was so hard for you guys. Obviously you’re
allowed to limit the size of contributions. That’s been the law since the
beginning of time. So here, you get to limit the size of contributions.” |
| Yes, it’s for an independent political action committee, but
that doesn’t mean there’s not a risk of corruption. Look at [former Ohio House
Speaker Larry
Householder], look at Menendez, look at a million other cases. |
| Look at the President of the United States saying
in April of 2024, “If you raise a billion dollars for me, I will relax
energy regulations on day one.” That’s just plainly a quid pro quo, and that is
only through a super PAC. |
| I think they could write this opinion and just make it seem
like everybody’s kind of crazy that they thought this was a hard case, which
will be fun because I’ve lived through seven years of people telling me I’m insane
— and that I don’t even understand how to read the law — because I’ve suggested
that maybe there’s actually another side to this question. |
