Advocates of Question 1 — Peter McCormick, Karin Francis, Sebastian Francis, Tiger McCormick and Atticus Richard — campaign ahead of the Nov. 5, 2024, election. (Photo courtesy of Maine Citizens to End Super PACs)
While parties have tried to set themselves apart from one another this election cycle, leaders across the political spectrum in Maine have found a common interest in one of the state’s ballot initiatives, which ultimately seeks to get dark money out of politics nationwide by teeing up a U.S. Supreme Court ruling.
Question 1 on the Nov. 5 ballot, which aims to place limits on donations to political action committees that independently spend money to try to support or defeat candidates, has been endorsed by 128 civic and business leaders in Maine, ballot question committee Maine Citizens to End Super PACs announced Monday.
The initiative stems from legal scholar Lawrence Lessig, who told Maine Morning Star that there has also been growing excitement in democracy reform circles across the U.S about the effort in Maine.
Among the endorsers are Maine’s Democratic U.S. Reps. Chellie Pingree and Jared Golden, who are both running for reelection and have previously supported other campaign finance reform efforts in Congress.
“Corporations and the ultrarich have drowned out the voice of the American people, spending billions of dollars to elect candidates who would further line the pockets of big business,” Pingree wrote in a statement to Maine Morning Star. “The power should be in the hands of everyday voters, not corporations. The ‘Yes on 1’ campaign to end Super PACs works towards that goal and will strengthen our democracy for future generations.”
In Golden’s view, too, Question 1 is an opportunity for Mainers to lead the fight against big money in politics.
“Capping contributions to PACs will reduce the influence of corporations, millionaires and billionaires in our elections, and shift the balance of power in our democracy back to the voters,” Golden wrote in a statement.
Question 1 asks, “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?”
State legislators also want this limit, including outgoing Speaker of the Maine House Rachel Talbot Ross (D-Portland) and state Sen. Rick Bennett (R-Oxford).
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“Question 1 is a solution that we can all get behind — regardless of party — to ensure that our children and grandchildren inherit a system that works for the Maine people, not special interests,” Bennett wrote in a statement.
When announcing their endorsements, other lawmakers similarly pointed to the referendum’s bipartisan appeal. “Voting Yes on Question 1 is simple, straightforward, and nonpartisan,” wrote state Sen. Marianne Moore (R-Washington). “Maine isn’t for sale.”
Pan Atlantic Research polled Mainers on the question and, according to results released in September, most respondents (69%) said they intend to vote “yes,” 15% said they intend to vote “no,” and 16% indicated they were undecided. The survey had a margin of error of 3.5%.
While voters will officially decide on Nov. 5, lawmakers and democracy groups have anticipated that the question would be supported by Mainers since signature gathering began last fall. Skepticism about the initiative’s success, however, has centered on the long-term goal — to get the nation’s highest court to rule that contributions to PACs can be regulated by Congress.
But, Lessig also sees the growing bipartisan support as a signal that the U.S. Supreme Court will ultimately rule in the initiative’s favor.
“I also think that there’s not a very strong political reason, even if you imagine [the Justices] to be partisan, not a very strong partisan political reason to like super PACs,” Lessig said. “At the beginning, they were very strongly right-wing and so you can imagine that the Republican Party would be very eager to keep them, but the Democrats in 2020 spent more super PAC money than the Republicans.”
The full extent of Super PAC spending for the upcoming election will not be known until well after votes are cast, but big spending has already been documented in Maine’s races. For example, a billionaire-funded Illinois super PAC has spent more than $2 million on ads opposing Golden’s reelection.
Lessig’s point is, he explained, “everybody can see it as just an arms race.”
The long goal behind the simple question
“I think it’s begun to be clear to people that there’s a real shot not just to uphold Maine’s initiative, but if Maine’s initiative is upheld, the same reasoning would revive the federal statute limiting Super PACs federally,” Lessig said.
Maine’s effort is not the first of its kind. Lessig, the Roy L. Furman professor of law and leadership at Harvard Law School, has been trying to advance such a measure for years with his nonprofit EqualCitizens.US, which is based out of Boston.
Maine and Massachusetts are an appropriate place to bring this challenge, according to Lessig, because the First Circuit Court of Appeals, the federal circuit court governing the region, hasn’t ruled on whether Super PACs are constitutionally required — meaning there is no precedent.
When Lessig tried the effort in Massachusetts, however, it was blocked by the state Attorney General, as Massachusetts law gives the Attorney General the ability to block an initiative the officer believes to be unconstitutional. There isn’t any requirement for citizen initiatives to have a constitutionality check before going on the ballot in Maine.
Maine leaders, including ballot committee chair Cara McCormick, saw a path forward when Lessig explained this hurdle at a dinner in the summer of 2023 organized by LeadershipNow. According to Lessig, Maine is the only state with this type of question on its ballot this election cycle.
The eventual path to the U.S. Supreme Court is expected to start with a legal challenge of Maine’s referendum, if passed. This is because the limit it seeks would be potentially unconstitutional in light of the court’s ruling in 2010, Citizens United v. FEC.
The U.S. Supreme Court — by a slim 5-4 majority — ruled that the government can’t prevent corporations or unions from spending money in support of or against candidates and that this spending is protected under the First Amendment.
By permitting unlimited election spending, Citizens United v. FEC paved the way for future rulings that further loosened funding restrictions. The Citizens United decision was first applied by a federal court in SpeechNow.org v. FEC. SpeechNow.org, a nonprofit where people can pool resources to advocate for or against federal candidates, challenged the constitutionality of the Federal Election Campaign Act’s contribution limits and disclosure requirements. An appeals court held that FEC’s limits violated the First Amendment.
This ruling opened the path for independent expenditure-only groups, also known as super PACs, to accept unlimited political donations. Super PACs have to report their donors but can accept money from nonprofits that use “dark money,” meaning the source is secret, because nonprofits are not required to report their donors.
Lessig previously told Maine Morning Star he thinks there is no chance the Supreme Court will change Citizens United but that the question the Maine referendum raises is not answered in Citizens United — whether contributions to a committee that makes independent expenditures can be limited.
Harvard Law professor emeritus Larry Tribe and Chicago Law professor emeritus Al Alschuler, a Maine resident who was one of the applicants for the citizen referendum, argue that large contributions to PACs inevitably create a risk of “quid pro quo” corruption, essentially a favor for a favor, given that donors and candidates have the opportunity to collaborate even if a PAC is independent.
Therefore, Tribe and Alschuler argue, contributions to PACs can be regulated by Congress.
If Question 1 passes and its constitutionality is challenged, it would likely be the Maine Attorney General’s office — as the legal representation for the Maine Ethics Commission, which oversees campaign finance laws — that would have to defend it, according to the Maine Secretary of State’s Office.
Support despite lingering skepticism
Before the recent outpouring of support, some attorneys and groups focused on reducing money in politics expressed concerns with the plan.
Maine attorneys opposed the initiative not because they disagree with the alleged flaw but because of the means being used to address it — passing a potentially unconstitutional referendum. Others raised concerns about banking on an untested theory, including Maine Citizens for Clean Elections.
However, Executive Director Anna Kellar said on Tuesday that the group now supports the referendum.
“Voters should be aware that the current Supreme Court approach to campaign finance means that the ban may very well be struck down if it passes,” Kellar said. “To be clear, we think the referendum is constitutional — we simply don’t have faith that the Court is likely [to] agree. Nonetheless, it is still worth voters showing their support for restrictions on outside spending.”
Attorneys also questioned whether the state of Maine will be on the hook for legal costs down the line should the referendum be challenged as expected.
Litigation is currently ongoing for a different campaign finance referendum that passed in November 2023.
After 86% of Maine voters passed Question 2, which prohibits foreign government spending in elections, Maine’s two largest utilities and media groups sued the state, arguing that the law violates their First Amendment rights.
The First Circuit Court of Appeals heard arguments on Oct. 9 after the state appealed a preliminary injunction from the U.S. District Court in Portland that prevented the law from being enforced. A decision is not expected for at least three months.
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