The order of Maine’s upcoming ballot questions was recently announced, and we now know that Question 1 will ask Mainers whether they want to restrict contributions to Political Action Committees (PACs) to a maximum of $5,000. PACs have been a controversial part of American politics for quite a while, and this proposal would restrict Mainers’ ability to send money to these entities.
Since the Supreme Court decided Citizens United v. FEC and Speechnow v. FEC in 2010, the rule for PACs is that any money going in or out of them is protected by the First Amendment as political speech. As long as the PAC itself does not communicate or coordinate with a candidate or their campaign, an individual may contribute as much as they want to the PAC, and the PAC may make any amount of independent expenditures to support or oppose a candidate. Question 1 seeks to change that in Maine by limiting to $5,000 the amount of money an individual can donate to a PAC annually. While supporters of Question 1 think it will stop political corruption, this proposal would violate various free speech protections.
The group supporting this initiative is EqualCitizens.us, founded by failed 2016 Democratic Presidential candidate and Harvard Law Professor Lawrence Lessig. Lessig has submitted this initiative in multiple states, including his own state of Massachusetts. While this was proposed as a ballot initiative in Massachusetts as well, it faced far more uphill legal battles there.
Unlike Maine, the Massachusetts Constitution requires the attorney general to confirm that any submitted initiative petition does not violate central rights guaranteed by the state Constitution, one of which is the freedom of speech. Massachusetts’ attorney general declined to approve the proposal under this clause. This is because, as the US Supreme Court ruled in Citizens United and the related case SpeechNow.org v. FEC, contributions to PACs and expenditures by PACs are both protected by the right to freedom of speech, which both the U.S. and Massachusetts Constitutions guarantee.
Despite the clear case law, Lessig sued the attorney general and argued that the Massachusetts state right to free speech is not the same as the federal right, and the attorney general should ignore the Supreme Court rulings on the U.S. Constitution’s right to speech. He made it clear that he intends to try to make the Supreme Court overrule SpeechNow by bringing these clearly unconstitutional proposals forward.
The Massachusetts Supreme Court, however, pointed out that certain legal deadlines had passed and that the petition Lessig was advancing in Massachusetts was dead in the water. As a result, Maine is now stuck with a failed unconstitutional initiative imported from Massachusetts as our very first ballot question.
It should be noted that Maine’s Constitution protects speech just like Massachusetts’, stating in Article I Section 4, that every “citizen may freely speak, write and publish sentiments on any subject.” However, the Maine Constitution does not require the attorney general or any other officer to confirm that initiatives do not violate constitutional rights before they are certified for the ballot. Arguably, Maine should add such a provision to its Constitution. If this ballot question passes, it will immediately spawn a wave of lawsuits. A similar petition was also attempted in Alaska that ran into major legal problems.
Not only does Lessig know this, it’s his goal. He is abusing our ballot initiative process to propose a clearly unconstitutional law, all in the hopes that he can successfully appeal the lawsuit all the way up to the Supreme Court and petition them to reconsider the sitting case law with which he personally disagrees.
Sadly, our state doesn’t yet have protections on the books to stop these obvious abuses of the ballot initiative process. Hopefully, someday, we will. Otherwise, we’ll just keep facing more of other states’ failed initiatives pushed on us by bad actors.