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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?
Few things unite this country like widespread frustration with the amount of money in our political system. Republicans and Democrats may not be able to agree on basic facts, but they still manage to overwhelmingly agree that special interests have too much influence in a campaign finance free-for-all that allows shadowy groups to pour limitless amounts of money into our elections.
That bipartisan agreement is well founded. It is also why Question 1 on the Maine ballot this year is likely to sail through with strong support from the voters. Before people treat this question as a general referendum on money in politics, however, they should have a clear understanding of its impacts.
A near-constant concern of ballot questions like this one is the possibility of a legal challenge. Maine voters have seen several initiatives pass at the ballot box in recent years only to be found unconstitutional ( in whole or in part) by the courts.
This referendum effort is somewhat different. It doesn’t just raise the possibility of a lawsuit — it invites one openly.
“When I was collecting signatures, I said explicitly over and over and over and over again, the idea is that we’re going to get sued,” Cara McCormack, who chairs the Citizens to End Super PACs group leading this effort, told the BDN editorial board recently. “The obstacle is the way. This is the way through. You have to fight in order to change the law, that’s how laws get changed in this country.”
Lawrence Lessig, a Harvard law professor and prominent voice nationally for campaign finance reform, is a main proponent and architect of Question 1. He believes that forcing the U.S. Supreme Court to consider its own logic applied specifically to Super PACs could secure an unlikely but much needed reform win.
“What became clear as we looked at this really carefully is that, we believe that this court, which has never addressed the question of Super PACs, applying the standard it articulated in Citizens United, would conclude that even though Citizens United stands, nothing in Citizens United blocks states or the federal government from limiting contributions to committees that spend independently,” Lessig told the editorial board. “And that victory, achieving that, would have an enormous effect on the most corrupting and polarizing speech in America today.”
It is a longshot, but in our view, it is a longshot worth taking. Our campaign finance system has predictability turned into a disastrous arms race between monied interests in the wake of the 2010 Citizens United ruling, and if Maine has even a small chance of standing up and improving this system for ourselves and for the entire country, we should do so.
But again, voters should know that this desire for legal action is the driving force behind Question 1, and it very well could be refuted quickly and decisively by the judicial branch. The legal challenge may not even make it to the Supreme Court.
If Question 1 does pass at the ballot box only to be turned away by the courts, that should once again emphasize to state leaders and to Maine voters that our referendum process needs a mechanism to weigh the constitutionality of a question before it goes before voters — like in Massachusttes, where an effort similar to Question 1 was turned away by the state attorney general’s office in 2022 for that very reason. Though we see significant potential value in testing the limits of the Citizens United ruling in this instance, Maine’s referendum process must not serve as a de facto avenue for legal experiments.
There is also a distinctive irony that this Maine push to tackle the issue of money in politics is funded in large part by out-of-state megadonors. Several Silicon Valley billionaires apparently want Mainers to pass this referendum, and have provided hundreds of thousands of dollars to the effort trying to make that a reality.
Does this add up to a somewhat tortured and cynical effort? Sure. But not nearly as cynical as a campaign finance system that tortures voters with a relentless barrage of special interest money, misleading if not downright false advertising, and a corrupting appearance that our democracy is for sale to the highest bidder.
Question 1 is an uphill but worthwhile battle to establish some sensible form of guardrails within that broken system. That system currently may work great for special interests, but it often crowds out the interests and voices of everyday people. Maine voters should stand up to that system, even if it comes at a price.
Vote for Question 1, but know that it will surely come with an additional legal fight and costs for the state of Maine. This fight isn’t just a possibility, it’s the point.
Election notice: The BDN will stop accepting letters and columns related to the Nov. 5 election on Wednesday, Oct. 30. Not all submissions can be published.