Sometimes, Donald Trump’s most outrageous behavior teaches a valuable lesson. His recent promise of policy changes to oil executives if they “raise $1 billion to return me to the White House”—now the subject of two Senate Subcommittee investigations—could be the most valuable lesson yet.
Since the early 1970s, campaign finance law has limited contributions to federal candidates. That limit for individuals is now $6,600 in each election cycle. Yet, for the last 14 years, lower federal courts have interpreted the First Amendment to create a loophole in those limits. If the contribution goes to a political action committee that is independent of the candidate — a so-called “SuperPAC” — there is no limit to the size of the contribution.
Most believe that it was the Supreme Court that gave us SuperPACs. That belief is a mistake. In 2010, the Supreme Court held that a corporation could make unlimited expenditures supporting or opposing a candidate so long as those expenditures were independent of the candidate. Its reasoning was tied to the idea of “quid pro quo” — this for that. If — as the Court assumed—the only legitimate basis for limiting political speech was the risk of “quid pro quo” corruption, then speech that was independent of a candidate was “by definition,” as Justice Kennedy described it in Citizens United v. FEC, not part of any quid pro quo. Or put differently, if it was part of a quid pro quo, then it was not “independent.”
Citizens United said nothing about contributions. It was three months after that Supreme Court case that a lower federal court, the D.C. Circuit Court of Appeals, held that if independent expenditures created no risk of quid pro quo corruption, then — as a matter of law — contributions to a committee that makes independent expenditures could also create no risk of quid pro quo corruption. That decision created the SuperPAC.
Donald Trump has now demonstrated exactly why that decision is obviously wrong. Because the only way oil executives could give Trump’s campaign $1B is if they contributed to a Trump SuperPAC. Trump’s promise — that if they did, he would reverse Biden’s oil regulations — is a classic quid pro quo. But the “quo” — the $1B contribution — is a gift to a SuperPAC. Thus, the very thing that the D.C. Circuit said could not happen as a matter of law actually did happen as a matter of fact.
Trump is not the first to teach this obvious lesson. That honor goes to Democratic Senator Robert Menendez (D-NJ). In 2015, Menendez was indicted (the jury did not convict) for quid-pro-quo corruption. But there again, the “quo” was a contribution to Menedez’s SuperPAC. Menedez’s lawyers actually had the chutzpah to argue that the thing he was being indicted for, the D.C. Circuit said could not happen. That was exactly right. But the remedy for that mistake is not to absolve Menedez or Trump. The remedy is to reverse the lower court case that gave us SuperPACs and thus to allow limitations on contributions to independent political action committees.
But why, one might ask, should the solution to this sort of corruption be a limit on contributions? Why not simply prosecute the bribery?
Almost 50 years ago, the Supreme Court answered that question directly: Yes, the government could prosecute the quid pro quo; but everyone recognizes how difficult such a prosecution is, because everyone understands that most will not be as obvious about the corruption as Donald Trump was. “Laws making criminal the giving and taking of bribes,” the Court wrote, “deal with only the most blatant and specific attempts of those with money to influence governmental action.” Thus, as well as bribery regulation, the Court explicitly upheld “contribution ceilings” as a “necessary legislative concomitant to deal with the reality or appearance of corruption inherent in a system permitting unlimited financial contributions.”
It is astonishing (and maybe a bit embarrassing to the profession of law) that it has taken 14 years and Donald Trump to make this obvious point clear: “unlimited financial contributions” to SuperPACS create the very same “reality or appearance of corruption” that “unlimited contributions” to a political campaign do—even if the expenditures from those PACs are properly “independent,” and therefore cannot be regulated. Nothing in Citizens United compels SuperPACs; indeed, the logic of Citizens United — that it is only the risk of quid pro quo corruption that can justify limits on political speech—demonstrates precisely why SuperPACs are not compelled by the First Amendment.
The Supreme Court could well have the chance to correct this lower court mistake as early as 2026. The Maine Secretary of State has now certified an initiative that bans SuperPACs. That initiative will appear on the November ballot. If it passes and the First Circuit Court of Appeals upholds it — and that court has never considered the question—then the Supreme Court will have to review it. And when it does, the lawyers from Maine will be able to rely directly upon the logic of Citizens United to show why contributions to independent political action committees can be limited. Those lawyers will thus ask the Supreme Court to apply its existing test to a set of facts it has never considered and to declare, finally, that Madison’s First Amendment allows us to be independent of SuperPACs — just in time for the 250th Anniversary of the Declaration of Independence.
You can support the Maine initiative by giving to Maine’s Citizens to End SuperPACs.
