Maine sued over new campaign finance law, but that was supporters’ plan all along

Political action committees tied to a Republican state lawmaker filed a legal challenge in federal court on Friday to overturn a campaign finance reform Mainers overwhelmingly voted for in November. 

Those behind the reform welcome this lawsuit, however, as such a legal challenge is a key part of their plan.

“I don’t think there’s anything surprising,” the legal scholar who spearheaded the effort, Lawrence Lessig, said of the lawsuit on Friday. “And, it helps us nicely tee up the question the Supreme Court has never considered.”

Currently, contributions to political action committees cannot be regulated, so long as the PAC doesn’t contribute directly to candidates. These groups are commonly referred to as super PACs. 

The referendum Maine voters passed on Nov. 5 set a $5,000 limit on super PACs, so Lessig and the others behind the referendum knew a legal challenge would come. Their hope is that this lawsuit will eventually make its way to the U.S. Supreme Court and that the highest court will rule that PACs should be regulated.

“This is the next step,” Cara McCormick, who chaired the ballot question committee, said of the lawsuit. “We think that the court will respect our sovereignty as a state to have to have this law.” 

The attorney representing the plaintiffs doesn’t think so and argues the law will be struck down far before then. 

“What this [law] does is it restricts the ability of people to speak,” said Charles Miller of the Institute for Free Speech, one of the plaintiff’s two attorneys. 

Miller and Joshua Dunlap of Pierce Atwood filed the lawsuit in U.S. District Court on behalf of two PACs — Dinner Table Action, which was founded by state Rep. Laurel Libby (R-Auburn) and activist Alex Titcomb, and For Our Future, which is run by Titcomb. Titcomb is also individually listed as a plaintiff.

Maine Attorney General Aaron Frey and members of the Maine Ethics Commission are listed as defendants. Special Assistant to the Attorney General Danna Hayes said the office does not comment on pending litigation, and Ethics Commission Executive Director Jonathan Wayne said that its members are reviewing the lawsuit.

The background 

Since Buckley v. Valeo in 1976, the Supreme Court has allowed contributions to be regulated when there is a risk of “quid pro quo” corruption, essentially a favor for a favor. In the case of elections, if there is a risk someone could be making a donation to a candidate in exchange for a favor, then Congress can regulate that contribution. In 2010, the Supreme Court extended this reasoning to corporations and unions in Citizens United v. Federal Election Campaign Act. 

Three months later, in SpeechNow.org v. FEC, the D.C. Circuit Court of Appeals upheld that contributions to PACs cannot be regulated either, as long as the PAC is independent. Other lower federal and state courts followed suit but the ruling was never reviewed by the Supreme Court. 

While Lessig thinks there is no chance the Supreme Court will change Citizens United, the question the Maine referendum raises — whether contributions to a committee that makes independent expenditures can be limited — is not answered in Citizens United.

Harvard Law professor emeritus Larry Tribe and Chicago Law professor emeritus Al Alschuler, a Maine resident who submitted the application for the ballot referendum, argue that large contributions to PACs inevitably create a risk of quid pro quo corruption, given that donors and candidates have the opportunity to collaborate even if a PAC is independent. 

Therefore, Tribe and Alschuler argue, contributions to PACs can be regulated by Congress.

The lawsuit 

The lawsuit argues that the new state law is unconstitutional because it puts limits on Mainers’ free speech and requires the disclosure of all donors who contribute toward independent expenditures, regardless of amount.

Current law stipulates that donors contributing less than $50 to candidates or political committees don’t have to disclose their identity.

Both aspects of the law would impact the two PACs behind the lawsuit and their donors. 

According to the plaintiffs’ legal counsel, multiple donors have already told them the law would stop them from donating. Dinner Table Action raised more than $454,000 during the 2024 cycle, more than one-third of which came from groups or people that donated in excess of $5,000 in a year. 

For Our Future currently has approximately $40,000 on hand, all of which came from a single donor, according to the lawsuit. This PAC has been exclusively funded by contributions over $5,000, so the law would effectively shut down its operations, the lawsuit argues.

Donations to For Our Future have come from the Concord Fund, which is linked to conservative legal activist Leonard Leo, who helped establish the conservative majority of the high court. The Institute for Free Speech has also received donations from DonorsTrust and Donors Capital Fund, dubbed the “dark-money ATM of the right” and connected to Leo’s network. 

“The folks that try to attack Citizens United — or what I prefer to say, the people who like to impose restrictions on the amount of speech that people can have — do so under the misguided notion that somehow if somebody spends a lot of money getting their message out, they’re going to somehow win and convince people when they shouldn’t,” Miller said. 

“Our view of this is that if somehow people were able to get a lot of money behind their issue, well then maybe it shows you that, in the marketplace of ideas, that people think that that’s a good enough idea to support it.”

Before the election, the president of the Institute for Free Speech, David Keating, wrote an op-ed in the Portland Press Herald calling on Mainers to not support the referendum, echoing the overarching claims of the lawsuit when arguing that it would infringe on Americans’ rights to organize and express opinions on who should run the government. 

The Institute for Free Speech previously represented Libby and the Dinner Table PAC in a lawsuit against the state in 2023 to overturn restrictions that had set low fundraising limits for PACs led by legislators. Lawmakers ultimately repealed the restrictions. 

Miller said that scenario, while different, offers a similar dynamic. “It’s the unfairness in that that we saw and challenged,” Miller said. 

While the attorney general and state Ethics Commission are not currently commenting on the lawsuit, those behind the reform think the lawsuit helps focus people on what they believe to be the fundamental question at hand. 

As Lessig put it, “Where in our Constitution did it ever arise that a state like Maine wasn’t free to protect itself from this kind of corruption?”

McCormick said she has faith in the courts to rule in their favor. 

“Super PACs are killing the country, and in Maine, we decided to try and do something about it,” McCormick said. “We want to restore public trust in the political process. We want to say that in Maine we are not resigned to the tide of big money. We are the tide.”

From Lessig’s perspective, all that was needed to continue the path to the nation’s highest court was one lawsuit, but he said he’d be surprised if there aren’t more. 

Next steps 

The plaintiffs’ counsel reached out to the Attorney General’s Office before filing and asked them to consider not enforcing the law pending the resolution of the litigation, Miller said. 

This is the approach the state took to another referendum that passed last year, which prohibited foreign government spending in elections, after its legality was challenged.

“If, for some reason, they don’t agree, then we will go to the court and ask for a temporary restraining order that would stop the act from taking effect, pending ability to kind of get to the end of the court,” Miller said. 

When a decision is ultimately reached, however, either side will have the right then to appeal to the First Circuit Court of Appeals.

According to Lessig, the First Circuit Court is the best place to bring this challenge because it hasn’t ruled on whether Super PACs are constitutionally required — meaning there is no precedent.

When Lessig tried the effort earlier in Massachusetts, which would’ve also been in the First Circuit, it was blocked by the state attorney general, who under Massachusetts law can block an initiative they deem unconstitutional. There isn’t any requirement for citizen initiatives to have a constitutionality check before going on the ballot in Maine.