Worth 1,000 words
The appellees have filed their brief in our case defending the people of Maine’s right to police the size of contributions to independent political action committees. And I’m grateful to them for framing their argument in a way that makes it so simple to capture the mistake they are making precisely.
Because here it is, captured in the picture above. Notice the sleight of hand: “independent expenditures” versus “independent donations.”
Citizens United, it is true, concluded that “by definition,” “independent expenditures do not give rise to corruption or the appearance of corruption.” Yet that case said nothing about “independent donations.”
SpeechNow assumed that what was true about expenditures must be true about donations. That assumption is plainly false.
An “independent expenditure” is an expenditure regulated to be uncoordinated with a candidate. Such regulation is feasible and effective: The committee can police whether its actions are coordinated with a candidate’s, because they are the ones acting, and they are the ones that face legal exposure if they do coordinate.
But a donation to a committee is not policed by the committee. The committee has no way to know what inspired it, or whether it was, in fact, “independent.” It could be. But nothing requires that it be. That is why the district court acknowledged that contributions to independent political action committees could indeed create the risk of quid pro quo corruption.
That fact is why, under the logic of Citizens United, Buckley, and common sense, the people should have the freedom to avoid that risk of corruption.
Appellee’s arguments about originalism are even more fun. Stay tuned.
