Bye bye, SuperPACs! Your foundation is gone!
A district court in Maine has enjoined enforcement of an anti-SuperPAC initiative that had been enacted by Maine voters in November with 74.9% of the vote. 600,000 Mainers had said “enough” to SuperPACs — more Mainers voting for the initiative than had ever voted for any initiative or any person in the history of the state — and yet the court has now said, “not yet.”
I’ve written a long essay about the core mistake the district court made in interpreting Citizens United. You can read that here. In this much shorter essay, I want to show just why this district court opinion, in fact, should give us real hope.
Because the district court has conceded that the foundation to the case that gave us SuperPACs — SpeechNow v. FEC—is wrong.
The Error in SpeechNow
In 2010, three months after the Supreme Court decided Citizens United v. FEC, the DC Circuit decided the case that would give us SuperPACs — SpeechNow v. FEC.
Citizens United had held that independent expenditures could not be limited. SpeechNow held that contributions to committees that make independent expenditures could not be limited.
The core reasoning in SpeechNow is this:
In light of the [Supreme Court’s] holding [in Citizens United that] as a matter of law [] independent expenditures do not corrupt or create the appearance of quid pro quo corruption, contributions to groups that make only independent expenditures also cannot corrupt or create the appearance of corruption. The Court has effectively held that there is no corrupting “quid” for which a candidate might in exchange offer a corrupt “quo.”
Given this analysis from Citizens United, we must conclude that the government has no anti-corruption interest in limiting contributions to an independent expenditure group such as SpeechNow.
“No anti-corruption interest,” in other words, because — “as a matter of law” — “there is no corrupting ‘quid’ for which a candidate might in exchange offer a corrupt ‘quo.’”
We had argued that premise was false. That indeed, there were plenty of examples where there was a “corrupting ‘quid’ for which a candidate might in exchange offer a corrupt ‘quo’.” The most famous of these cases was the indictment in 2015 of Robert Menendez: Menendez had been indicted for offering government benefits (the “quo”) in exchange for a contribution to Menendez’s SuperPAC (the “quid”) — the very thing the DC Circuit said could not be.
The district court in our case accepted this claim. As it found, “contributions to independent expenditure PACs can serve as the quid in a quid pro quo arrangement.”
But apparently, the court didn’t hear the “bingo” that must have then rung out across the land. Because the opposite finding had been the foundation of SpeechNow.
SpeechNow acknowledged the question it was answering had not been decided in Citizens United. Instead, it reasoned from Citizens United to a premise it believed must be true: that there was “no anti-corruption interest,” because — “as a matter of law” — “there is no corrupting ‘quid’ for which a candidate might in exchange offer a corrupt ‘quo.’” And because there was “no anti-corruption interest,” the DC Circuit found it unnecessary to weigh that non-interest against a free speech interest. “The First Amendment,” the court held, “cannot be encroached upon for naught.”
But the district court in our case has now found that the interest is not a “naught.” That indeed, the core justification for regulating contributions to a political action committee — that they create a risk of quid pro quo corruption — is real. Which is to say, the whole foundation for SpeechNow is gone — leaving SuperPACs in the Wile E. Coyote position described in the gif above.
This is real progress, even if wrapped in a mistake (see my other essay about that mistake). Because though we may live in looney times, as with every Looney Tunes cartoon, eventually, gravity catches up.
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