WASHINGTON — Maine has become a staging ground for the latest battle to end the practice of limitless super PAC donations that has dominated American politics for the past 15 years.
In 2024, voters in the Pine Tree State, by a margin of almost three-to-one, approved a ballot initiative limiting super PAC donations to $5,000 per person or entity.
“It demonstrates that this is a deeply purple issue; there was no difference in the results in red districts or blue districts,” said Lawrence Lessig, a Harvard Law School professor whose nonprofit Equal Citizens is leading the effort to defend the referendum.
The ensuing legal fight — Dinner Table Action v. Schneider — has emerged as one of the most consequential scrums over money in politics in recent years and could radically transform the 2028 presidential election.
In July, Portland federal judge Karen Frink Wolf struck down the campaign finance restrictions created by the ballot measure, ruling that they violated the First Amendment “because there is no set of circumstances where they could be applied constitutionally.”
Lessig decried Wolf’s ruling as “the most extreme opinion ever in the history of the federal judiciary,” claiming that it found that “even if you can see there’s a risk of corruption, there’s nothing the state can do about it.”
The ruling has been appealed and is pending before the Boston-based First Circuit Court of Appeals.
Super PACs emerged as a phenomenon right after the Supreme Court’s landmark Citizens United v. Federal Election Commission (FEC) decision in January 2010, which eliminated federal limits on individual or corporate spending in elections.
Since then, tens of billions of dollars have been pumped into campaigns, with more than $5.1 billion being raised by super PACs in 2024, according to an analysis from OpenSecrets — dwarfing that of principal campaign committees, which are subject to caps on individual donations.
“The Supreme Court’s not going to reverse Citizens United,” Lessig stressed. “Indeed, all it has to do is to apply the reasoning of Citizens United because what Citizens United said is … if there’s a risk of corruption, you can regulate.”
Wolf was not convinced, writing in her ruling: “If the government’s interest in combatting the appearance of corruption was not enough to justify limits on independent expenditures, it stands to reason that the same interest is not enough to justify limits on contributions to independent expenditures.”
The Supreme Court never explicitly ruled whether caps or restrictions on donations to super PACs are unconstitutional. That fell to the DC Circuit Court of Appeals, which ruled two months after Citizens United was decided that “the government has no anti-corruption interest in limiting contributions to an independent expenditure group.”
Since then, at least seven other appeals courts have unanimously slapped down independent-expenditure contribution limits as unconstitutional, according to a brief by the Institute for Free Speech (IFS), which is fighting against the Maine initiative.
“I give it a 0% chance of success,” IFS senior attorney Charles Miller told The Post about Lessig’s latest effort. “This is essentially repackaging old arguments that have failed over and over again.
“They’ve added more splash to it this time and a little bit more sort of a PR polish to it, but it’s the same substantive arguments.”
Restrictions on political donations “can be very attractive in the abstract,” former FEC Chairman Allen Dickerson acknowledged.
“But if you think about where that thinking leads, it is not obvious that these contribution limits would only apply to political committees and not to other ideological organizations.”
Dickerson warns that if the limits imposed by Maine’s referendum are allowed to stand, “the principal way by which ordinary people can pool their money to take out ads and speak independently about politics would be cut off.”
“The billionaires and the multi-millionaires and the big organizations would still be able to do that directly,” he added, arguing that middle-class Americans wouldn’t have the means of buying TV ads without pooling money.
Right now, Lessig is only fighting to limit donations to super PACs, not eliminate them altogether. The Maine referendum would still allow ordinary Americans to pool funds together for political purposes.
But the professor believes that the rise of super PACs with limitless donations has dramatically shrunk “the number of relevant funders” to the point where “candidates are most attuned to” an “increasingly small number of billionaires.”
Lessig and his allies argue that the government can restrict donations to super PACs just like Supreme Court precedent allows limits on individual donations to campaigns.
But he concedes that the feds won’t be able to restrict election spending by individuals that doesn’t go through third parties like campaigns and super PACs, established by the high court in 1976’s Buckley v. Valeo.
Buckley struck down limits on what candidates can spend on their own campaigns, but allowed caps on donations from outside individuals due to quid pro quo concerns.
“What we won’t achieve is the end of the opportunity for somebody like George Soros … or Elon Musk to spend money independently on their own,” said Lessig.
Dickerson responded: “If an individual can spend unlimited funds to elect a candidate — independently, again, of that candidate, not a contribution — then it must be true that you can create organizations that pool people’s money” to help elect them.
“We reject the proposition that restricting money in politics is a good goal in and of itself,” said Miller. “…It will always be the case that elites will always have more access to politicians. You know that’s innate in any system of government.”
There is an open question about whether or not the Supreme Court will take up Dinner Table Action v. Schneider, given that the high court often looks for situations where there’s a major split in the lower courts.
“The largest number of people to vote for anything in the history of Maine have said they don’t want super PACs,” Lessig said, making part of his originalist pitch.
“Why do five justices on the Supreme Court get to disagree with that when they’re not relying on anything we the people ever did in enacting our Constitution?”
