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Jacob Posik is the director of legislative affairs at the Maine Policy Institute.
Question 1 on Maine’s ballot this year, an effort to limit contributions to political action committees (PACs), is undoubtedly unconstitutional, even its backers say so.
I don’t write this to change your mind or encourage you to vote against the measure — I have no doubt that it will pass overwhelmingly.
Rather, I want you to be prepared when the state of Maine either refuses to enforce the law or is subsequently sued and prevented from doing so.
Question 1 highlights a larger problem with Maine’s ballot initiative process. We have no checks and balances on the system to stop obviously unconstitutional measures from appearing on our ballots.
But Massachusetts does. Under its state constitution, the attorney general has the right to review petitions on their legal merits — not their policy merits — and determine whether to certify them. If a proposed ballot question runs afoul of the state Constitution, it never sees the light of day in Massachusetts.
This is precisely what Massachusetts’ attorney general did in 2022. The same group pushing Question 1 in Maine first tried to pass their unconstitutional law in Massachusetts. The attorney general’s office there refused to certify the petition for its First Amendment violations. The question never appeared on Bay Staters’ ballots.
Question 1 is unconstitutional because federal courts have held that limits on contributions to PACs violate free speech protections. Provided PACs are not coordinating with politicians or their campaigns, no limits can be placed on how much money an individual contributes to one.
Like it or not, this is the law of the land.
Question 1’s supporters acknowledge their measure is unconstitutional. This effort is being launched in the hope they can successfully appeal all the way to the U.S. Supreme Court. Then they want the Supreme Court to hear their case and rule in their favor.
Not only is it unlikely for the high court to take their case, I find it even more difficult to believe the Supreme Court would rule in their favor.
Regardless, this whole saga playing out through Maine’s ballot initiative process is why we should tighten up our system with protections like Massachusetts has.
When ballot questions pass but are overturned by courts, never implemented or only partially implemented, we often hear the refrain “the will of the people.” The organizations behind these ballot questions argue we must respect the will of the voters.
Sadly, the will of the voters doesn’t matter when a law is unconstitutional. An unconstitutional law can’t stand simply because a majority of voters decide to approve it in a referendum election. That’s why we live in a constitutional Republic where the rights of the minority are protected against the whims of the majority.
But Question 1’s illegality isn’t its only downfall. It’s also worth noting that limiting PAC contributions to $5,000 is an ineffective means to achieve the outcome proponents seek. There are two big reasons for this.
The first is that money always finds a way in politics. People don’t like it, but it’s the truth. Instead of sending $50,000 to one PAC, for example, wealthy people who want to influence our elections will simply give $5,000 to 10 different PACs that are all making expenditures to support or oppose the same candidates.
They will prop up numerous PACs, contribute the same amount of money as they were before, and still unequally influence elections. The end result is the same as it is today.
The second reason is that Question 1 would likely result in more, not less, dark money campaigning. Here’s why.
In a hypothetical world where Question 1 is legal and enforced, big donors will simply give money to groups like Maine Policy Institute or the Maine People’s Resource Center.
These are nonprofits that aren’t allowed to tell people how to vote, but they can engage in issue advocacy. They can run ads on television and social media saying things like “Question 1 is the wrong choice for Maine,” but they can’t explicitly tell you to vote “yes” or “no.”
Nonprofit donors are not public information, and for good reason. People have historically been targeted for harassment, intimidation and violence for supporting causes with which people disagree.
Thus, Question 1 would likely result in more campaign dollars going to issue advocacy groups where the public will never know who is contributing. This is undoubtedly worse than the campaign finance system we have today.
Any way you slice it, Question 1 is unconstitutional and wouldn’t not stop dark money in politics. And if Maine had ballot protections like Massachusetts, we’d likely never be forced to vote on it — and we’d be spared the outcry when it’s inevitably nullified by courts.