As Maine Policy predicted months ago, a lawsuit has been filed against multiple government officials in Maine to enjoin Question 1 on the 2024 ballot, a proposal to restrict how much money individuals can contribute to political action committees (PACs). The Institute for Free Speech, a nonpartisan organization dedicated to defense and education surrounding constitutional rights, issued the lawsuit. Not only has a lawsuit been filed, but Maine has declined to enforce the policy until the lawsuit is completed, showing that even our government is uncertain about the legality of Question 1 as passed by voters.
Almost three-quarters of Maine voters passed Question 1, and many have claimed the law serves as a way to eliminate the influence of big money from politics. However, as this predictable lawsuit shows, Question 1 is an unconstitutional infringement on First Amendment speech rights and Maine should refuse to enforce it under supremacy clause grounds.
The supremacy clause is in Article IV Clause 2 of the United States Constitution and states that the federal laws and the Constitution are the supreme law of the land. Thus, if Maine state law conflicts with the rights established in the federal Constitution, Maine should ignore Question 1. Since federal courts have already decided that super PAC donations are protected under the First Amendment, Maine should proceed by refusing to enforce the law due to it being unconstitutional.
Many Mainers who voted for this ballot question likely did so with good intentions, but a simple ballot measure cannot circumvent the United States Constitution. The man who originally proposed the policy, Harvard Law Professor Lawrence Lessig, likely did not have such good intentions. In supporting this proposal, he stated it “is not asking the Supreme Court to change its jurisprudence, not asking them to overturn Citizens United.”
Citizens United v. FEC was a 2010 Supreme Court case establishing independent expenditures by super PACs as protected speech. Still, most concerning is that Lessig alleges this ballot question is meant to ask the court anything.
The only reason a state-level policy like this would elicit a Supreme Court case is because someone would sue over it, which means Professor Lessig predicted and even wanted this law to cause a federal lawsuit against Maine. Not only that, he evidently expects that it would be appealed to the Supreme Court, and thus, this lawsuit will cost Maine taxpayers years of legal proceedings and fees.
Some may ask why a Harvard law professor would propose a ballot measure in Maine when Massachusetts’ Legislature is so much closer, especially considering the Bay State also has ballot measures. The answer is that he did try to advance this matter in the Bay State, but was denied. Massachusetts’ Attorney General declined to allow an identically worded measure to be approved for the ballot in that state, and in her decision, she noted the free speech violations it would pose as the reason for not allowing it to appear on the ballot.
Some in Maine have alleged that those supporting the plaintiffs in this lawsuit are conservative. According to the Portland Press Herald, the Institute for Free Speech is a conservative group, though the organization only advocates for constitutional rights. The Press Herald labeled the Institute for Free Speech as a conservative group despite them filing lawsuits previously against Republicans. Most notably, they filed a lawsuit against Republican politicians Ryan Walters and Dan Isett in Oklahoma for blocking the speech and press rights of reporters.
As for the lawsuit, there are slim chances that the ballot measure will be upheld in court or that we will see a cut-and-dry conclusion to the case any time soon. However, the Maine District Court decided that the losing party would appeal the case to the U.S. Court of Appeals for the First Circuit, and the same thing would happen with the Supreme Court.
Either the court will grant a writ of certiorari, or they will refuse to uphold the Circuit Court’s decision. Regardless, we are talking about years of appeals and proceedings before this case has a final conclusion. What is certain is that Professor Lessig’s name will remain in the news the entire time.