SpeechNow
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FS4PPL
Posted on July 16, 2025
On July 15, 2025, a magistrate judge of the U.S. District Court of Maine granted a permanent injunction to block a Maine state law that would end independent expenditure political action committees that can receive unlimited contributions (super PACs) in Maine. The law—arising out of a 2024 ballot measure that passed with overwhelming support of Maine voters—places no restrictions on expenditures, but does establish a $5,000 annual limit on contributions to super PACs. Maine voters recognized that unlimited contributions to super PACs create significant risk that candidates and contributors can and will engage in behind-the-scenes quid pro quo corruption by funneling payments through super PACs.
Unlimited contributions also create the appearance of corruption, thereby undermining the legitimacy of our democracy. The law was immediately challenged by two super PACs. The magistrate judge, misapplying Supreme Court precedent, dismissing fifteen years of history, and without the benefit of a full trial, has granted a permanent injunction that blocks the law from going into effect. This ruling prevents Maine voters from protecting their elections from quid pro quo corruption.
Maine voters should be applauded for their thoughtful, constitutional efforts to protect our democracy. Free Speech For People (FSFP) will continue to support this law through the appeals that will come.
Background
In its 2010 decision in Citizens United v. FEC, the Supreme Court held that limits on independent expenditures—expenditures made to support a candidate without coordination with that candidate—are unconstitutional. The ruling did not address contributions; indeed, in Citizens United and in cases since then, the Supreme Court has continued to distinguish between limits on political expenditures and limits on contributions, granting more protections to expenditures than contributions and subjecting contributions to a lesser standard of scrutiny.
A few months after Citizens United, a lower court ruling, SpeechNow v. FEC, created super PACs by striking down a federal law that limited contributions to independent expenditure committees, now known as super PACs. It improperly collapsed the Supreme Court’s two-tiered system of analysis and concluded that because independent expenditure limits are unconstitutional, so too are contributions to super PACs. The decision was wrongly decided, never reviewed by the Supreme Court, and not binding precedent in Maine. Now—just fifteen years later—super PACs dominate Maine and U.S. elections, pour billions of dollars into our elections, have created powerful incentives for candidates and super PAC funders to engage in corrupt quid pro quo agreements, and have created such an appearance of corruption that it undermines voters’ faith in our elections and our democracy.
In recognition of these risks, in November 2024, 75% of Maine voters passed Ballot Question 1, which prohibited annual contributions above $5,000 to independent expenditure PACs. Two Maine super PACs, Dinner Table Action and For Our Future, immediately sued to block the law. The parties—defendant officials of the Maine Commission on Governmental Ethics and Election Practices, nonpartisan intervenor EqualCitizens and other intervenor-defendants, and the plaintiff super PACs agreed to forgo an evidentiary hearing and to hold only oral argument on the merits of the case. The magistrate judge has now blocked the law from going into effect.
The Magistrate Judge Misapplied the Law and Misunderstands Super PACs._
- _Candidates and contributors can enter into quid pro quo agreements without involving the super PAC_. The court claimed that contributions to independent expenditures “are one step further removed from the candidate” than the super PACs themselves, so “the logic of Citizens United dictates that the danger of corruption is smaller still.” The court’s rationale here wholly misunderstands the logic of Citizens United, which is concerned not with removal but with the purported independence of independent expenditures from candidates. The Supreme Court reasoned that because independent expenditures, by definition, cannot be coordinated with candidates, they therefore cannot give rise to corrupt quid pro quo agreements between a candidate and the entity that makes the expenditures. This logic does not apply to super PAC contributors. As Free Speech For People discussed in its amicus brief, super PACs create opportunities and incentives for candidates and contributors to engage in quid pro quo agreements.
- _Contributions and expenditures are not subject to the same analysis._ The Supreme Court uses a bifurcated system of analysis that both differentiates between contributions and expenditures, and subjects contribution limits to lesser standards of review than expenditure limits. Though the magistrate judge recognizes this, she relies almost wholly on non-binding lower court rulings that wrongly collapse the two and insists that Citizens United“forecloses limits on contributions” to super PACs. It does not. Citizens United only analyzes a law that limits expenditures. It said nothing about contributions.
- _The lived experience of Maine voters should be considered when assessing whether unlimited super PAC contributions create the appearance of corruption._ Maine voters understand how super PACs operate and why they create an appearance of corruption. Voters have spent fifteen years voting under a system increasingly dominated by megadonors funneling massive contributions through super PACs and receiving favor from our elected officials. Their experience and perspective should not be so casually dismissed in any analysis of the “appearance of corruption” inquiry.
- _The disclosure portion of the law is constitutional._ By striking down this reasonable disclosure law, the court further and unnecessarily hamstrings Maine’s efforts to protect its elections from corruption.
_Maine Voters Deserve Better._
Maine voters got it right. FSFP will continue to defend this law and support all efforts to appeal this decision.
Read the decision here.
Read FSFP’s amicus brief in support of the law here.
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NATION MAG
The Maine Lawsuit That Could Save Democracy From Big Money
A legal fight could restore the state’s power to set its own limits on contributions to super PACs and encourage public financing.
This story was produced for StudentNation, a program of the Nation Fund for Independent Journalism, which is dedicated to highlighting the best of student journalism. For more StudentNation, check out our archive or learn more about the program here. StudentNation is made possible through generous funding from The Puffin Foundation. If you’re a student and you have an article idea, please send pitches and questions to pitches@thenationfund.org.
When voters in Maine passed a ballot measure last year to cap donations to super PACs—also known as independent political action committees—it appeared to be another milestone toward fairer elections. In a state known for election reforms such as public campaign financing and ranked-choice voting, the proposal looked like another way to successfully curb the flow of money from corporate and wealthy donors into local races.
Then came the lawsuit. In October, the US Court of Appeals for the First Circuit agreed to hear Dinner Table Action v. Schneider, a case that could decide the future of money in American politics.
Fifteen years after the Supreme Court opened the floodgates to dark money and unchecked spending with Citizens United, the Maine initiative has exposed a tension in the movement for clean elections: should advocates pursue state and local reforms, or bet on a high-stakes legal battle that could radically rewrite the rules of campaign finance nationwide?
In the summer of 2023, Maine residents began to think about how to place a question about limiting super PAC contributions on the ballot. Drawing on a legal theory developed by Harvard Law professor Lawrence Lessig, organizer Cara McCormick founded Citizens to End Super PACs, the ballot-question committee formed to lead the campaign.
McCormick, who pushed for Maine to adopt ranked-choice voting in 2016, crafted the initiative to cap donations at $5,000 based on efforts by Lessig’s nonprofit, Equal Citizens, which had pursued similar initiatives in Alaska and Massachusetts—both ultimately blocked in court.
“The Supreme Court has never addressed whether SuperPACs are constitutionally mandated,” McCormick wrote in January. “The people of Maine, by supporting this initiative, want to give the Court the chance to address the question—and finally, correct this awful mistake.”
On election day, voters agreed, with the measure receiving nearly 75 percent of the vote. But within a month, two political action committees sued to block the law. Backed by conservative groups, the Maine PACs argue that the cap infringes on their free speech.
Equal Citizens, led by Lessig and executive director Maia Cook, intervened in the case in February, filing a brief defending the law. “Our argument is not that we are trying to overturn Citizens United,” Cook explained. “We’re trying to raise a question about whether we can limit contributions to super PACs. That question goes back to this decision called SpeechNow v. FEC, which, although it’s treated as the law of the land, it is not.”
The 2010 ruling at the DC Circuit effectively gave birth to super PACs, holding that contributions “do not corrupt or create the appearance of quid pro quo corruption.” Lessig and Cook assert that this logic is fundamentally flawed and believe that their originalist argument could appeal to the Supreme Court’s conservative majority.
A successful case could restore states’ power to set their own limits on contributions to super PACs and amplify the role of public financing in elections. “If we level the playing field,” added Cook, “public financing can become an option—so regular people can run, and we’ll have a more representative government—not one run by rich people.”
But in Maine, the grassroots groups that built the state’s clean-elections system declined to endorse the super PACs measure. While local newspapers, including the Portland Press Herald, urged a “yes” vote, the group Democracy Maine, which includes Maine Citizens for Clean Elections (MCCE), the League of Women Voters of Maine, and Maine Students Vote, did not join the campaign.
“We wholeheartedly support the aspirations of this bill,” wrote Maine Citizens for Clean Elections in a statement before the election, “but we cannot fully endorse this ballot question.” The group warned that the measure could “open Pandora’s box,” and unintentionally allow the Supreme Court to roll back existing reforms.
That apprehension reflects years of legal defeats in a post–Citizens United landscape, where federal courts have repeatedly struck down state campaign finance reforms, including parts of Maine’s landmark clean-elections program.
MCCE was formed during the campaign for the 1996 Maine Clean Elections Act. “It’s always been this phrase that ‘as Maine goes, so goes the nation’ because back in the day, our elections were held in September,” said Jen Lancaster, MCCE’s communications director. “That independent spirit is what launched the effort in the mid-1990s.”
The initiative passed, establishing a first-in-the-nation program that allows gubernatorial and state legislative candidates to run entirely on public funds. But after the Supreme Court struck down matching funds in 2011, Maine was forced to repeal a key provision of its Clean Elections program. MCCE responded by gathering over 70,000 signatures to advance the 2015 citizen initiative, which restored and strengthened the program by creating new, legally compliant mechanisms to replace lost funds.
The group, which helped revitalize Maine’s Clean Elections program, took a more cautious stance toward Equal Citizens’ approach.
“The reason why we were neither for nor against is we did not believe in the legal strategy,” said Lancaster. “We thought the courts, especially in Maine, would not rule in our favor. It’s really hard to overturn Citizens United—national groups have been trying for 15 years, and we just did not see this as a reliable path forward.”
Maine Citizens for Clean Elections instead supports a constitutional amendment to overturn Citizens United, while pushing ahead with immediate state and local reforms. The nonprofit mobilizes its grassroots network to organize and testify for its legislative agenda, which this year prioritizes shoring up funding for the Clean Elections Program and increasing transparency in PAC spending—efforts the group sees as “defensible in the current court climate.”
After a federal judge blocked the law in July, Equal Citizens appealed to the First Circuit Court of Appeals, and last month, the court agreed to take up the case. As it’s the remaining circuit court that has not yet ruled on the issue of super PACs, a decision in Maine’s favor could bring it to the Supreme Court by next fall.
But for clean-elections groups, the work continues within the bounds of today’s legal landscape. Lancaster said MCCE’s primary challenge is keeping public financing viable as campaigns become more expensive. Heading into the 2026 governor’s race, not a single candidate has pledged to run on public funding—a sign, she notes, that the program needs renewed investment to be able to sustain competitive campaigns.
A recent poll found that 79 percent of Americans oppose the Supreme Court’s decision in Citizens United. Lancaster and Cook agree that the majority of Americans, across party lines, support reform. “The funny thing is that no one likes money in politics,” said Lancaster. “It’s truly a nonpartisan issue. Anyone can see, ‘Oh, you’re spending a lot of money in our elections. I don’t like that.’”
“I think a lot of people might wrongly associate this as a fight that benefits one party over the other,” Cook said. “But the truth is, it’s disadvantaged both Republicans and Democrats, and created this arms race that people are just absolutely exhausted with.”
The Maine initiative exposes a central question for the clean-elections movement today: How do you deliver change when public opinion is on their side but the courts are not? What comes next at the First Circuit could shape the road ahead for clean-elections advocates across the nation—whether to keep reforming within a system restricted by these precedents, or to confront the legal structures that have fueled more than a decade of unchecked political spending.
“When I saw that 74.9 percent of Mainers voted in favor of this,” said Cook, “I saw that as public recognition that people are really tired with the political system born out of SpeechNow and Citizens United.”
The Maine Lawsuit That Could Save Democracy From Big Money | The Nation
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harvard Law professor Lawrence Lessig discusses the strategy for ongoing Maine campaign finance litigation
By Rin Pastor
Orient Staff
November 7, 2025
Abigail HebertMAINE V. DARK MONEY:Lawrence Lessig speaks in Kresge Auditorium on Wednesday night. Lessig, a Harvard Law professor and founder of the non-profit Equal Citizens, spoke about a novel legal strategy Equal Citizens is using to attempt to uphold Maine’s regulation of super PACs.
Last Wednesday in Kresge Auditorium, professor of law at Harvard Law School Lawrence Lessig discussed ongoing litigation at the Court of Appeals for the First Circuit regarding campaign finance regulations. This litigation pertains to a 2024 Maine ballot initiative limiting campaign contributions that was passed by 75 percent of voters. This law was almost immediately challenged and ruled unconstitutional at the district court level. Lessig and the organization he founded, Equal Citizens, have appealed the decision.
Maia Cook, the executive director of Equal Citizens and one of Lessig’s former research assistants, began the talk by defining super political action committees (super PACs) and outlining their impact on the amount of money involved in political campaigns. Cook explained that the modern super PAC is a product of the Supreme Court case Citizens United v. FEC (2010), which deemed limits on independent expenditures uncoordinated with specific campaigns as unconstitutional, and the D.C. Circuit Court of Appeals case SpeechNow.org v. FEC (2010), which expanded the doctrine from Citizens United and deemed contribution limits to independent expenditure super PACs unconstitutional.
“Together, these decisions created the modern super PAC, a legally distinct type of political action committee that can receive unlimited sums from corporations, individuals and unions and can spend unlimited amounts so long as they are uncoordinated [with campaigns],” Cook said.
Cook stated that while the intersection of democracy and capitalism requires some amount of campaign finance, the modern super PAC has created a vast increase of money—especially anonymous donations, also called dark money—in politics. She also noted that unrestricted super PAC activity has disadvantaged both Democrats and Republicans, leading to both parties being exorbitantly influenced by the richest top one percent of Americans.
“I don’t want the scale here to be lost on anyone, because just in 15 years, dark [money] contributions went from $6.6 million to $1.3 billion, and that is a 197 times increase from its original size,” Cook said.
:{Lessig outlined the legal theory that could reform elections to be less influenced by super PACs and billionaire spending. Citizens United built off of the Supreme Court case Buckley v. Valeo (1976), which stated that if expenditures from independent organizations are not prearranged with those running for office, there is no real or apparent corruption and thus these donations cannot be limited. Under Buckley, if expenditures are coordinated between organizations and candidates, they can be regulated.
Citizens United expanded this principle to corporations and unions. The SpeechNow decision established that contributions to these expenditures also create no corruption or appearance of corruption, a decision that Lessig takes issue with. He explained that while independent expenditures cannot be prearranged or coordinated, contributions can.}:
“It’s totally legal for [a candidate] to coordinate contributions to his super PAC, even though he is regulated not to coordinate expenditures. So the fact that contributions can be coordinated means the whole premise behind equating contributions with expenditures is just false,” Lessig said.
Lessig and Equal Citizens will be using this theory to argue the case for Maine’s ballot initiative in the Court of Appeals. In district court, the judge ruled that even if there is real or apparent corruption, Maine has no right to regulate it.
“The reason that’s a great victory is that that is the most extreme any court has ever been,” Lessig said. “It’s the first court in the history of federal jurisdiction ever to hold that even though there’s a risk of corruption, there’s nothing you can do about it.”
Lessig argued that, because of this extremity, if the Court of Appeals or Supreme Court rules against Equal Citizens, it will be a betrayal of the existing law.
“You only see how bad it would be if they struck the Maine initiative down by seeing how clear it is that the Maine initiative is constitutional.… If the court goes against us now, it is an extraordinary betrayal.… They’re changing the law to protect super PACs, not upholding Citizens United but extending Citizens United for the first time,” Lessig said.
Lessig believes that an extension of Citizens United would present a real political crisis, necessitating a bravery amongst lawyers, universities and the press.
“As we look around at this moment, there’s a certain cowardice that has become contagious. People make a judgment about what they should do, and they do the reasonable thing. And the reasonable thing is an act of cowardice,” Lessig said. “It’s understandable why they do what they do. It’s also wrong.”
Ultimately, Lessig is hopeful that the Supreme Court will agree with Equal Citizens. However, he also argues that should the Court disagree, it will be a sign for a necessary reform to the United States’ political structures.
“I’m optimistic the Court will agree with me. I think we should realize just what’s at stake if the Court goes the other way,” Lessig said in an interview with the Orient. “We need to start thinking seriously about how we bring constitutional reform through this process that involves citizens as opposed to lawyers and politicians.”
Attendee Gigi Ford ’27 admired Lessig’s ability to explain legal issues and theory in a concise and accessible manner.
“The most impactful part of the talk was Lessig explaining the logical fallacies found in the judicial system’s reasoning and practice. Being able to communicate this effectively to someone without a background in law is very important in the fight for ending super PACs,” Ford said.
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medium
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 Unitedhad held that independent expenditures could not be limited. SpeechNow held that contributionsto committees that make independent expenditures*could not be limited
The core reasoning in SpeechNowis 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 Unitedto 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.
You can sign up to follow the case here.
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After bringing someone like Robinson close to victory in 2010, the Mercers’ fresh taste for political power brought them the privileges and lifestyles of the rich & famous. They soon found themselves at a2011 conference of the Club For Growth, a pro-business activist group for the conservative elite, which spent $6m of its own in support of 2010 GOP/Tea Party contenders. The Club is perhaps best known for being sued and fined by the FEC in 2005 for violating fair election laws. Its Executive Director David Keating then formed SpeechNow, a group which sued the FEC and did even more damage to campaign finance regulations via their Ninth Circuit Court victory in the immediate wake of Citizens United v FEC, but right now we’re focused on the Club as the place where Mercer first met Andrew Breitbart.
BREITBART OUT, BANNON & MERCER IN
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lessig
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 Unitedhad held that independent expenditures could not be limited. SpeechNow held that contributionsto committees that make independent expenditurescould not be limited
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The core reasoning in SpeechNowis 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 Unitedto 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.
You can sign up to follow the case here.
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clc
SpeechNow.org v. FEC | Campaign Legal Center
in March 2010, the U.S. Court of Appeals for the D.C. Circuit struck down the federal contribution limits as applied to “independent expenditure committees,” finding that the Supreme Court’s analysis in Citizens United required it to “conclude that the government has no anti-corruption interest in limiting contributions to an independent expenditure group.” The court, however, upheld the political committee disclosure requirements as applied to such groups. These independent expenditure only committees are today commonly referred to as “Super PACs.”...
ABOUT THIS CASE
In March 2010, the U.S. Court of Appeals for the D.C. Circuit struck down the federal contribution limits as applied to “independent expenditure committees,” finding that the Supreme Court’s analysis in Citizens United required it to “conclude that the government has no anti-corruption interest in limiting contributions to an independent expenditure group.” The court, however, upheld the political committee disclosure requirements as applied to such groups. These independent expenditure only committees are today commonly referred t to as “Super PACs.”
In February 2008, SpeechNow.org filed suit in the U.S. District Court of the District of Columbia challenging the federal contribution limits and disclosure requirements as applied to political committees that make only independent expenditures in elections. In July 2008, the district court denied plaintiffs’ request for a preliminary injunction, and plaintiffs appealed the decision to the U.S. Court of Appeals for the D.C. Circuit. However, the court of appeals stayed the case to await the outcome of the then pending Citizens United case.
In January 2010, the Supreme Court in Citizens United struck down the prohibition on corporations making independent expenditures in elections.
The government declined to appeal the D.C. Circuit decision. SpeechNow.org petitioned for certiorari for review of the Court’s decision on the challenged disclosure provisions, but the Supreme Court denied certiorari on November 1, 2010.
The CLC and Democracy 21 filed an amici brief in 2008 with the district court to defend the contribution limits and CLC filed two amici briefs in 2009 with the D.C. Circuit.
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CAMP FIN OVERVIEW:
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But the funding that is known offers key clues about the players behind the greatest unraveling of campaign finance regulation in U.S. history.
‘Buckley’ and Cato
One must travel back in time more than 40 years to understand how today’s motley collection of campaign money laws came to be — and how limits on political fundraising and spending have unraveled along the way.
It began with the Supreme Court’s *Buckley v. Valeo* decision of 1976, a reaction to Watergate reforms passed by Congress. The court upheld limits on contributions to political campaigns, but in a critical part of the ruling which would play a major role years later, allowed for unlimited spending on campaigns.
The Buckley v. Valeo fight also helped inspire Ed Crane, former national chairman of the Libertarian Party, which was one of the case’s plaintiffs, to create a libertarian equivalent to the predominant think tanks of the day — the liberal Brookings Institution and the conservative American Enterprise Institute.
With $500,000 from Charles Koch, Crane became the leader in 1977 of the Cato Institute, previously named the Charles Koch Foundation. In 1981, it moved from San Francisco to the heart of American political power — Washington, D.C.
Ever since, the Cato Institute has tirelessly fought against campaign finance laws it considered antithetical to its philosophy of small government and largely unencumbered speech.
“We stand against campaign finance laws in general,” Cato Institute research fellow Trevor Burrus said. “We believe that most campaign finance laws are unconstitutional. They are clear impediments of political speech.”
For the Kochs, was Cato an ideological enterprise or vehicle for self-interest? Both, to some degree. Avowed libertarians, the Kochs control a vast empire of heavily regulated companies that would undoubtedly benefit from less government intrusion. Coloring the political system red instead of blue has practical, financial implications for the Kochs, who overwhelmingly support Republican candidates and causes.
The nation’s campaign money system largely stood unchanged until 2002, when Congress passed the Bipartisan Campaign Reform Act — commonly known as the McCain-Feingold Act, named for its two Senate sponsors. The law curtailed a variety of political activities and included a ban on unlimited “soft money” contributions — corporate and union cash — given to political parties.
It also attracted an immediate backlash by foes of campaign finance legislation. Twelve suits brought by more than 80 plaintiffs — were consolidated as McConnell v. Federal Election Commission, named for Mitch McConnell, a U.S. senator from Kentucky and current majority leader, who has long been in favor of liberalizing restrictions on campaign contributions.
‘McConnell’ et. al.
Those joined together under McConnell included the National Rifle Association, the Republican National Committee, the National Right to Life Committee, the American Civil Liberties Union, the AFL-CIO, the U.S. Chamber of Commerce and others.
Generally, the backers of these campaign finance case litigants are well-known, but not always.
And some are surprising.
Take the ACLU. Despite its reputation as an unabashedly liberal organization, the ACLU has routinely aligned itself with libertarians and conservatives in recent legal fights against campaign finance regulations. Who are the top donors to the ACLU?
Tops is the left-leaning Sandler Foundation, having given more than $24 million to the ACLU and the ACLU Foundation since 2001, according to the Center for Public Integrity’s review of tax records.
Other known funders of the ACLU’s 501(c)(4) “social welfare” nonprofit arms include the ACLU Foundation; Equal Justice Works; Proteus Action League; GLBTQ Legal Advocates; and the Jewish Community Federation of San Francisco, The Peninsula, Marin and Sonoma Counties. Together, they’ve given more than $856,000 since 2010, tax filings show.
Proteus Action League is an affiliate of Proteus Fund, a left-leaning philanthropic organization. It also creates and oversees grants aimed at limiting money and politics, according to its website. Between 2013 and 2015, the Proteus Fund and the Proteus Action League have together given $306,000 to the ACLU and the ACLU Foundation.
Publishers Clearing House money has infused the LuEsther T. Mertz Charitable Trust, which in turn has contributed more than $6.6 million to the ACLU Foundation for various initiatives, according to the Center for Public Integrity’s review of available tax documents from 2005 to 2015.
The National Rifle Association is prominent for its passionate support of firearms rights, and more recently, the presidential campaign of Donald Trump. But it, too, began supporting campaign finance deregulation in earnest at the time of the McConnell case.
One of the NRA nonprofit’s more notable funders is the Cabela’s Outdoor Fund, a social welfare organization connected to the famous outdoor outfitter Cabela’s, which is also a major firearms retailer.
From 2012 to 2015, the fund gave the NRA $1.3 million. Richard Cabela, the now deceased founder of Cabela’s, was a passionate supporter of the NRA. The company, which Bass Pro Shops acquired earlier this year, had about $4.1 billion in revenue last year, according to its annual report.
Koch-connected organizations have also been quite active.
Cato intervened by filing an “amicus brief” in McConnell, as did the Institute for Justice, a group that got its start thanks to the Kochs.
The Supreme Court, for the most part, upheld the “soft money” and political advertising restrictions of the McCain-Feingold law but struck down the age restrictions on minors’ ability to contribute money to politicians as a violation of free speech rights.
The mixed ruling gave pro-political speech advocates fuel to continue challenging campaign laws, and the chipping away of the reforms began in earnest.
The Supreme Court’s ruling in Wisconsin Right to Life v. FEC in 2007 further eroded the McCain-Feingold law by allowing certain nonprofit groups to air political issue ads within 30 days of a primary election and 60 days of a general election. Wisconsin Right to Life Inc., a nonprofit advocacy group, wanted to run ads that would ask voters to call their senators urging them to oppose filibusters of judicial nominees.
Emerging as a national figure in this case after working for years in lower courts was James Bopp, who was counsel for Wisconsin Right to Life. A bevy of organizations intervened in the case, many arguing for religious freedom of speech. The American Civil Liberties Union, a regular stalwart opponent of limits on free speech, had its say, as did a number of Koch-connected organizations.
Among them, the Center for Competitive Politics (now the Institute for Free Speech), the Cato Institute, the Goldwater Institute and the Institute for Justice.
The Goldwater Institute is a public interest legal organization based in Phoenix, Arizona, named after former U.S. Sen. Barry Goldwater, R-Ariz. Timothy Sandefur, vice president for litigation for Goldwater, said its primary mission is “to defend constitutional principles, through direct litigation and amicus participation.” Donors Capital Fund, the Mercer Family Foundation and the Lynde and Harry Bradley Foundation are among its most generous funders with a combined total of $4.2 million.
‘Citizens United’
In 2010, the Supreme Court ruled in Citizens United v. FEC that corporations, unions and certain nonprofits could raise and spend unlimited amounts of money to advocate for or against politicians. The enormity of the impact of the decision would not be realized for months, even years.
But those who argued the case and participated in it were well aware of its importance. The usual liberal reform groups chimed in, as well as a cadre of Koch-backed crew members, including: the Cato Institute, the Center for Competitive Politics and the Institute for Justice.
A few months later, a federal court ruling in SpeechNow.org v. FEC allowed for the creation of “independent expenditure-only committees” — political groups soon nicknamed “super PACs.” These super PACs could themselves accept unlimited money from corporations, labor unions and even 501(c)(4) “social welfare” nonprofits and business trade associations that themselves could keep their donors secret.
Four years later in *McCutcheon v. FEC*, the Supreme Court axed limits on how much money a person could give, in aggregate, to political parties, candidate committees and PACs. The practical effect: people are now allowed to directly pump hundreds of thousands of dollars more into party and candidate coffers.
Among the organizations involving themselves in the case? The Cato Institute, the Center for Competitive Politics and the Institute for Justice.
Institute for Justice
The Institute for Justice is a nonprofit, libertarian public interest law firm headquartered in Arlington, Virginia, with satellite offices in states including Florida, Minnesota and Arizona.
It was co-founded in 1991 by former Department of Energy Deputy General Counsel Chip Mellor and Clint Bolick, a former assistant at the Equal Employment Opportunity Commission. Billionaire industrialist Charles Koch provided $350,000 in seed money for the organization.
The players who have shaped campaign finance »
The Center for Public Integrity combed through tax information for the Institute for Justice and found some of its top donors include the Claws Foundation, Dunn’s Foundation for the Advancement of Right Thinking, Searle Freedom Trust and the Lynde and Harry Bradley Foundation, totaling about $19.8 million since 1998. But the largest donor identified for the Institute for Justice was the Robert W. Wilson Charitable Trust, giving more than $15.5 million since 2003, according to tax records.
Wilson was a notable hedge funder and philanthropist who jumped to his death from his New York apartment in 2013.
Donors Trust, a Virginia-based free-market charity and “donor advised” fund that distributes money to charities across states has been the Institute for Justice’s most consistent supporter.
Tax records show that Donors Trust has contributed to the Institute for Justice every year since 2004, giving it more than $1.6 million. Charles Koch’s foundation is one of the heavyweights that holds an account with Donors Trust. Koch’s organization also directly gave the Institute for Justice $9,600, according to 2014 and 2015 tax records. The David H. Koch Foundation gave $250,000 in 2001, according to records.
The Jewish Communal Fund, another donor advised fund, has given $317,050 to the Institute for Justice since 2010, according to tax records. The John Templeton Foundation, an avid promoter of free market ideas, gave $900,000 between 2013 and 2014, according to a review of tax records.
One of its other generous donors, however, is the National Christian Charitable Foundation, which gave almost $2.8 million since 2007.
This donor advised fund typically gives to Christian churches and ministries with a mission of “mobilizing resources by inspiring biblical generosity.”
The political leanings of organizations such as the Institute for Justice are not a basis of scrutiny for the National Christian Charitable Foundation, and they’re mostly unknown to the foundation, Chief Creative Officer Steve Chapman said.
“NCF doesn’t have any stance on campaign finance issues,” he said in a statement. “We don’t hold positions on such political topics, and we don’t hold stances on whether charities to which we make grants should or should not be active on that issue.”
Richard Uihlein, a wealthy conservative donor who increased his political giving after the *Citizens United* decision, gave the Institute for Justice $17,500 between 2014 and 2015. But, he wasn’t the only well-known donor to contribute. The Bill and Melinda Gates Foundation, which usually contributes to global health and economic development causes, donated $600.
The Institute for Justice has more than 8,000 donors, said Paul Sherman, a senior attorney for the Institute for Justice who specializes in First Amendment litigation. No one donor provides more than 8 percent of its budget. In its most recent fiscal year, donations comprised more than 96 percent of its income, while the rest came from court-ordered awards of attorneys’ fees.
But that doesn’t mean those donors shape the Institute for Justice’s work, Sherman said.
“IJ’s donors give to us because they support our mission,” he said, noting that the organization has litigated in the same areas for more than over 25 years. “We have never taken a case or passed on a case because of pressure from a donor.”
Other notable contributions to the Institute for Justice include $90,000 from the Dick and Betsy DeVos Family Foundation, which was started by U.S. Secretary of Education Betsy DeVos and her husband in 1989. The foundation has given yearly since 2004, except for 2012 and 2014.
‘SpeechNow.org’ victory
The Institute for Justice notched a win in the U.S. Court of Appeals for the D.C. Circuit in SpeechNow.org v. FEC, a critical lower-court case.
In the case, the Institute for Justice and the Center for Competitive Politics represented David Keating, who now serves as president of the newly renamed Center for Competitive Politics.
Together, the groups questioned whether the federal government had the legal right to make Keating’s SpeechNow.org group register as a political committee — forcing it to adhere to contribution limits for political committees.
The court ruled in SpeechNow.org’s favor, thereby allowing it to raise unlimited amounts of money to independently advocate for or against political candidates. Limits on how much it could receive were found to be in violation of the First Amendment. It was the first time the Citizens United decision was applied in federal courts.
And it gave birth to a kind of political committee that would soon be dubbed a “super PAC.”
Although the Center for Competitive Politics and the Institute for Justice have no formal affiliation, they are “allies in the fight to defend political speech from government regulation,” Sherman said.
Sherman said both organizations have supported each other’s work with amicus briefs, and SpeechNow.org v. FEC was a great match of their strengths.
“CCP’s people had extensive experience with practice before the FEC, and IJ’s people had extensive experience litigating in federal court,” he said. “And we all knew one another. The world of libertarian public-interest lawyers is not huge.”
But the Institute for Justice isn’t always taking up the long, arduous process of going to court. Like other groups that want to provide suggestions and expertise to courts on matters, it has done so through amicus briefs in McConnell, Wisconsin Right to Life, McCutcheon and Citizens United.
The positions that the Institute for Justice has taken on campaign finance issues are made clearer when looking at who funds their endeavors, which include many donor advised funds and conservative-leaning family foundations and charitable groups.
While the Institute for Justice has some history with big money and politics because of its founding relationship with the Kochs, the Center for Competitive Politics can also be counted among the names of Koch beneficiaries.
Center for Competitive Politics
Former FEC Chairman Bradley Smith founded the Center for Competitive Politics in 2005, lamenting the extent of federal regulation on political activity.
The Center for Competitive Politics has waged war against the FEC as litigators, and it has represented others when political free speech is under attack.
David Keating, president of the Center for Competitive Politics, said the organization is simply honoring the guarantees of the First Amendment more so than political ideology or deregulation.
The players who have shaped campaign finance »
The Center for Competitive Politics prides itself on being part of changing the scope of campaign finance laws since its founding, while noting that there is still more freedom to be sought, especially when it comes to contribution and disclosure rules.
“Our country didn’t have campaign contribution limits until the 1970s,” he said. “I don’t see there’s any evidence that it’s made people we’re electing better than they were before the 1970s.”
Keating said government should make it easier for average citizens to become politically involved and, therefore, it should rethink contribution laws.
While the Center for Competitive Politics has not objected to disclosure by candidates and PACs, it is not in favor of pushing for more disclosure. Doing so, said Keating, would result in more difficult fundraising for groups and misleading disclosure information.
“Disclosure is where a lot of the action is right now,” he said. “That’s going to be in the courts and we may well be the ones representing the plaintiffs.”
Because the Center for Competitive Politics’ mission is the protection of free political speech, its legal argument in Wisconsin Right to Life, McCutcheon and Citizens United cases are just part of that mission.
The terrain of money and politics has the Center for Competitive Politics’ opponents questioning whether its ideals are truly its own — or if it’s just the mouthpiece for its wealthy benefactors.
Although the Center for Competitive Politics does not disclose the identity of its donors, the Center for Public Integrity’s review of tax and other financial records indicates the group is funded by a bevy of right-leaning organizations.
Since 2006, the Center for Competitive Politics has received more than $5.3 million from Donors Capital Fund, $1.3 million from the Robert W. Wilson Charitable Trust and $511,000 from the Ed Uihlein Family Foundation — itself funded in full by Republican megadonor Richard Uihlein — and $440,000 from the Lynde and Harry Bradley Foundation.
As far as its Koch alliances? The Charles Koch Institute gave $20,700 from 2014 to 2015, and the Charles Koch Foundation donated over $57,000 from 2012 to 2015, the Center for Public Integrity’s review of tax and other records shows.
A Koch spokeswoman declined to answer specific questions about the brothers’ giving. In a statement, spokeswoman Tonya Mullins said the Charles Koch Foundation “gives to non-profit organizations and more than 300 colleges and universities around the country that are exploring diverse ideas to meet the challenges of our day.”
The majority of the Charles Koch Institute money goes toward a fellowship program between the Center for Competitive Politics and the Charles Koch Institute, in which both organizations split the cost to pay for the fellow’s compensation, Keating said. The fellowship seeks to groom future free enterprise workers. The Charles Koch Institute provides support for internships and job placement for free-market professional hopefuls.
Keating said the Center for Competitive Politics’ donors give because they’re genuinely concerned with protecting free speech and they have a right to maintain their privacy.
If the Institute for Justice and the Center for Competitive Politics are just mere soldiers in an overall battle plan to charge against reform, their success makes them among the most decorated and skilled in the field.
War on disclosure?...
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