The Case That Could Bring an End to Super PACs

Harvard law professor and Equal Citizens founder Larry Lessig says the country is taking on water, and the leak he's trying to patch isn't necessarily the only one that's sinking the ship.

Speaking at the P&T Knitwear Bookstore, Lessig reportedly reached for a Titanic metaphor to describe the state of American democracy:

"The captain of the Titanic hits the iceberg, looks out on the deck, and there's a whole bunch of ice on the deck. He thinks, OK, we can fix this. We can clean the deck, and then the engineer tells him that there's a gash in the hull, and six of the 16 watertight compartments are filling with water, and so they know it doesn't matter if they clear the deck. The ship is going down."

"Then they gotta convince people to get into lifeboats. Which, in the middle of the Atlantic, in the middle of the night, in the middle of the winter, on the fricking Titanic, it's really hard, 'cause people are like, we're on the Titanic. Like, why do we have to get in a lifeboat?"

"All the work I've been doing for 20 years, and the work that the anti-gerrymandering people are doing – that, in my view, is the equivalent of the ice on the deck," he said. "We know how to fix it."

"But I actually think there's a gash in the hull, and the gash in the hull is the world of engagement-based media, which profits from turning us into ignorant people who hate each other."

Nevertheless, Lessig’s most recent effort to fix our leaky politics started three summers ago in Maine, when his nonprofit Equal Citizens organized an effort with Citizens to End Super PACs to gather signatures for a ballot initiative capping contributions to super PACs at $5,000.

Lessig collected signatures himself in a rural county on Election Day 2023, and a man he met was collecting signatures for a different cause — putting Donald Trump on the state's 2024 Republican primary ballot — but he signed on immediately after reading Lessig’s initiative.

"It's not a partisan issue in Maine or anywhere in the country," Lessig recalled him saying. "Everybody gets it."

The official ballot title was as follows:

“Do you want to set a $5,000 limit for giving to political action committees that spend money independently to support or defeat candidates for office?"

Question 1 passed with 74.9 percent of the vote.

The AP called it "an emphatic vote" in a record turnout election on November 5, 2024.

The measure got 600,191 votes, more than any initiative or candidate has ever gotten in the history of Maine.

Two super PACs promptly sued. The State of Maine agreed to wait to implement the law pending the outcome of the federal lawsuit.

A US district court judge found that contributions "can serve as the quid in a quid pro quo arrangement," but she struck the law down anyway, citing Supreme Court precedent.

Legal experts have called her ruling a win in disguise, because she accepted the factual argument.

At the time, Lessig said the judge "has, in effect, written the question for appeal."

On July 29, that appeal was argued in Boston by attorney Neal Katyal.

If Katyal’s argument was persuasive enough, it could produce a circuit split that lands the case before the Supreme Court.

You can hear Katyal’s oral argument along with the other oral arguments here.

Lessig thinks the justices will seize the chance to finally rule on the issue of individual contributions to Super PACs.

“The issue that this case would raise is not asking the Supreme Court to change its jurisprudence, not asking them to overturn Citizens United,” he said.

Asked how it ends at the Supreme Court, Lessig has been positively bullish: "Seven votes."

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This story is based on reporting by Steven Rosenbaum for Yahoo News. The author is an intervenor in the lawsuit described in this news item. Citizens to End Superpacs is an affiliate of Independent Voter Project and the Foundation for Independent Voter Education.