Editor's Note: This op-ed originally published in the Portland Press Herald as a letter to the editor and was submitted to be republished on IVN with permission from the author. Photo by Pepi Stojanovski on Unsplash.
Last Sunday’s Maine Sunday Telegram in the Portland Press Herald contained an op-ed decrying the statute recently adopted by referendum that prohibits a person from contributing more than $5,000 in any year to any single political action committee in the state of Maine.
Contrary to the position advanced by the author of that piece, there is good reason to believe that this law is constitutional. If the recently filed court challenge to the law ultimately fails, Maine will lead our nation in reasserting reasonable public regulation of the flood of money that is engulfing politics.
The question raised by our new law, and the recent lawsuit challenging it, is whether the reasoning of the United States Supreme Court in Citizens United v. Federal Elections Commission 558 U.S. 310 (2010) invalidating state and federal regulation of political expenditures by corporate entities, would also apply to invalidate regulation of contributions to political action committees (PACs). In Citizens United, the Court ruled that corporate entities have a free speech interest in participating in political debate — and that the danger of quid pro quo political corruption does not rise to a level that would justify restricting their right to make uncoordinated political expenditures.
On the other hand, it has long been settled by constitutional law that political contributions made directly to candidates and their campaigns can be, and are, severely restricted at both the state and federal levels because of the obvious risk of quid pro quo corruption inherent in such activity.
This reality was acknowledged by Citizens United, which found that independent expenditures by PACs lacked the degree of risk of quid pro quo corruption that is inherent in candidate contributions. The question not directly answered by the Supreme Court was whether contributions to political action committees and the solicitation of same pose a sufficient risk of quid pro quo corruption as to justify reasonable per donor and per PAC limits in amount.
One can certainly imagine that potential donors would expect some concrete results from their contributions to PACs in support of particular candidates or slates and that solicitors would be strongly tempted to at least hint at such. This specific expectation/solicitation is not directly involved with regulation solely of PAC expenditures. It is entirely conceivable that the Supreme Court would find a limitation on PAC contributions constitutional while adhering to its ruling that corporate expenditures are protected from regulation by the First Amendment.
To be sure, in SpeechNow.org v. FEC, 599 F.3d 686 (2010), the DC Circuit Court of Appeals has expressed the view that Citizens United protects contributions to PACs as well as political expenditures by PACs from any meaningful regulation. However, that court does not have the last word on the U.S. Constitution. There is every reason to go forward and see if the First Circuit Court of Appeals in Boston will take a different view. If that occurs, the split among the Circuits on this issue will virtually compel the Supreme Court to decide the issue.
If the Supreme Court agrees that the danger of quid pro quo corruption from the solicitation of PAC contributions justifies restrictions of the kind included in the Maine statute, such a ruling could open the door to similar regulations being enacted not only in the 50 states but potentially also by Congress.
Contrary to the suggestion in last Sunday’s op-ed, the enactment of reform legislation, whether by legislature or referendum, that challenges the contours of established Supreme Court case law, is a time-honored mechanism for states to test the boundaries and contours of U.S. constitutional doctrine.
Far be it from the citizens of Maine to cower under the cloud of Citizens United without using our ingenuity to ascertain its limits. Dirigo!