Amicus BriefAmicus Curiae Brief of
Brennan Center for Justice

The Brennan Center for Justice at New York University School of Law (the "Brennan Center") is a not-for-profit, nonpartisan law and public policy institute that seeks to improve systems of democracy and justice. The Brennan Center has longstanding expertise on campaign finance regulation and related constitutional issues. The Brennan Center files this brief pursuant to Rule 29(a) of the Federal Rules of Appellate Procedure, and all parties to the appeal consent to the filing of this brief.

In reviewing state and federal campaign finance laws over nearly half a century, the U.S. Supreme Court has consistently recognized two important principles: (i) strong state interests in preventing the reality or appearance of quid pro quo corruption support reasonable limits on campaign contributions; and (ii) such contribution limits are qualitatively less burdensome of First Amendment interests than expenditure limits and thus subject to a more forgiving standard of constitutional review. The Court's rulings in Citizens United v. Federal Election Commission and other cases, for all that we disagree with them, did not overrule these basic principles. See Gov't Appellants Br. 31–32, Equal Citizens Appellants Br. 14.

Relying on the Supreme Court's teachings, the people of Maine voted overwhelmingly to enact reasonable contribution limits for super PACs—outside groups that can generally fundraise and spend without limit—in November 2024. The initiative they passed, An Act to Limit Contributions to Political Action Committees That Make Independent Expenditures (the "Act"), received more votes than any other citizen initiative in Maine's history. Maine voters took this action at a time when super PACs have deployed massive amounts of money to influence American elections, including Maine elections. Despite being nominally "independent," they often spend in close coordination with candidates. Most of these funds come from a tiny group of the wealthiest donors and special interest groups, creating new avenues for political corruption, foreign influence, and other harms. In its ruling, the district court relied on decisions from other circuits that could not have fully grasped these ramifications because they were mostly decided immediately after the Supreme Court's decision in Citizens United. See infra Part I. This Court is not obligated to adopt those precedents.

The explosion in super PAC spending is especially impactful in a small state like Maine, where even modest expenditures can have an outsized impact and where the legislative record of the Act reflects real and widespread fears of corruption in politics. The decision of Maine voters to address the effects of super PAC spending on Maine elections by establishing reasonable contribution limits for these groups merits considerable deference from this Court. See infra Part II. At a minimum, if the Court is not prepared to uphold the constitutionality of the Act at this time, it should remand the case to the district court for the parties to create a comprehensive factual record establishing whether the judgment of Maine voters furnishes a constitutionally sufficient justification for implementing the Act. See infra Part III.

For nearly half a century, the U.S. Supreme Court has recognized that reasonable limitations on campaign contributions are justified by important state interests in preventing corruption and the appearance thereof. While the ability to make a campaign contribution implicates important associational rights, the ability to make a contribution of any amount is less consequential. See Buckley v. Valeo, 424 U.S. 1, 21 (1976). And "[t]o the extent that large contributions are given to secure a political quid pro quo from current and potential office holders, the integrity of our system of representative democracy is undermined," giving the government an important interest in imposing reasonable limits. Id. at 26–27 (emphasis added). The Supreme Court applied this reasoning in upholding contribution limits in multiple cases following Buckley. See Nixon v. Shrink Mo. Gov't PAC, 528 U.S. 377 (2000) (upholding state limits on contributions to state candidates); FEC v. Beaumont, 539 U.S. 146 (2003) (upholding the federal ban on corporate campaign contributions to federal candidates). Citizens United v. Federal Election Commission, 558 U.S. 310 (2010), which concerned the right of corporations (and by implication unions) to spend money directly on elections, did not overrule these cases, nor did any subsequent decision. See Gov't Appellants Br. 34–35.

Nevertheless, the D.C. Circuit Court of Appeals extended the Supreme Court's analysis of independent expenditures in Citizens United to disallow limitations on contributions made to independent expenditure groups, reasoning that because "independent expenditures do not corrupt or create the appearance of quid pro quo corruption, contributions to groups that make only independent expenditures also cannot corrupt or create the appearance of corruption." SpeechNow.Org v. FEC, 599 F.3d 686, 693–94 (D.C. Cir. 2010). Other federal circuit courts have followed the D.C. Circuit's approach. See, e.g., Wis. Right to Life State Pol. v. Barland, 664 F.3d 139, 153–54 (7th Cir. 2011); Republican Party of N.M. v. King, 741 F.3d 1089, 1095–97 (10th Cir. 2013); N.Y. Progress & Prot. PAC v. Walsh, 733 F.3d 483, 487 (2d Cir. 2013).

None of these decisions, which came in the months and immediate years following Citizens United, analyzed whether most super PAC spending would in fact be truly "independent" from candidates. In particular, in setting the precedent the district court followed here, SpeechNow did not evaluate how the lack of such independence or the many other unanticipated consequences of super PACs' proliferation in federal and state elections might factor in applying the more forgiving standard of constitutional review for direct contribution limits on such groups. See SpeechNow, 599 F.3d at 696; see also Gov't Appellants Br. 30–33. This Court, with the benefit of hindsight, should not ignore the developments of the last fifteen years. See infra at 14.

In short, the proliferation of super PACs that can raise and spend unlimited funds, often in tandem with candidates, has had serious negative consequences that were not, and perhaps could not have been, fully anticipated by SpeechNow and the other circuit court rulings on which the district court relied. This Court need not follow the same approach. See Free Speech Coal., Inc. v. Paxton, 606 U.S. 461, 489–492 (2025) (explaining that earlier internet speech precedents relied on decades-old factual findings and "could not have conceived of these developments" in widespread internet access before upholding an age-verification law); Cent. Va. Cmty. Coll. v. Katz, 546 U.S. 356, 363 (2006) ("Careful study and reflection" revealed erroneous assumptions such that the Court was "not bound to follow. . . dicta in a prior case in which the point now at issue was not fully debated.").

The nationwide consequences of unlimited contributions to super PACs have plainly been felt in Maine, a small state where super PAC spending can have an outsized impact. Federal races in Maine have attracted enormous sums of money from outside groups since SpeechNow was decided. In 2024, one super PAC from Illinois spent $2.3 million on the race in Maine's Second Congressional District, most of which came from a single donor. AnnMarie Hilton, Billionaire-backed Midwest super PAC spending millions on Maine's CD2 race, Maine Morning Star (Sept. 23, 2024), https://mainemorningstar.com/2024/09/23/billionaire-backed-midwest-super-pac-spending-millions-on-maines-cd2-race/. In 2020, outside groups spent over $91 million, mostly targeting the state's marquee Senate contest. Susan Cover, Darren Fishell, & Meg Robbins, How record sums of money have shaped Maine's 2020 elections, Maine Monitor (Oct. 25, 2020), https://themainemonitor.org/how-record-sums-of-money-have-shaped-maines-2020-elections/. Recent state elections in Maine have followed similar trends. In the state's gubernatorial elections between 2010 and 2022, outside group spending roughly quadrupled, from $3.5 million to $13.6 million, even while candidate spending dropped. Gov't Appellants Br. 18–19.

As in races elsewhere, there is evidence that candidates and outside groups often operate in tandem. See, e.g., Andrew Perez, Outside groups use Sen. Collins' own footage in ads boosting her campaign, Maine Beacon (Nov. 4, 2019), https://mainebeacon.com/outside-groups-use-sen-collins-own-footage-in-ads-boosting-her-campaign/ (describing how a pro-Susan Collins super PAC aired advertisement footage "almost entirely comprised of footage that the campaign created"); Yuichiro Kakutani, Ethics Complaint Filed Against Gideon Campaign, Washington Free Beacon (Sept. 16, 2020), https://freebeacon.com/elections/ethics-complaint-filed-against-gideon-campaign/ (describing allegations that super PAC backing Collins' opponent Sara Gideon disseminated ads shaped by Gideon campaign tweets containing "highly specific suggestions" as to messaging). And super PACs in Maine have also been linked to lawbreaking. See, e.g., Nick Grube, Court records tell story of a Hawaii defense contractor's attempts to influence Susan Collins and others, Maine Monitor (June 25, 2023), https://themainemonitor.org/court-records-tell-story-of-a-hawaii-defense-contractors-attempts-to-influence-susan-collins-and-others/ (defense contractor pled guilty to federal crimes that included illegal straw donations to a super PAC as part of influence campaign targeting Senator Collins).

Unsurprisingly, Mainers' trust in both their national and state governments has fallen, following national trends. In 2024, Mainers' trust in the federal government was a mere 17 percent. Colby Coll. Goldfarb Center for Public Affairs et al., Strengthening Maine's Civic Life: Trust, Belonging, and the Future, Maine Community Foundation, https://www.mainecf.org/wp-content/uploads/2024/10/CG-Civic-Health-Report_final-digital.pdf. Their trust in state government, while better, was still only 37 percent, close to a record low. Id.

These facts, coupled with the broader national environment, provide essential context for Maine's overwhelming 74 percent vote in favor of the Act, which received more votes than any other citizens' initiative in Maine history. See Me. State Legis., Legislative History Collection, Citizen Initiated Legislation, 1911–Present, available at https://www.maine.gov/legis/lawlib/lldl/citizeninitiated/; see also An Act to Limit Contributions to Political Action Committees That Make Independent Expenditures, H.R. 2232, 131st Leg., 2d Reg. Sess. (Me. 2024) (noting factors that influenced the legislature's decision to send the Act to voters for approval, including desire to prevent quid pro quo corruption and its appearance). This lopsided vote weighs in favor of judicial deference. Among other things, it is direct evidence of the voters' perception that corruption is a significant problem and that contribution limits are necessary to combat it. See Nixon, 528 U.S. at 394; see also Daggett v. Comm'n on Governmental Ethics & Election Pracs., 205 F.3d 445, 458 (1st Cir. 2000) ("[W]e take note . . . of the fact that Maine voters approved the referendum imposing reduced contribution limits as indicative of their perception of corruption.").

Even if this Court is not prepared to uphold Maine's contribution limits at this juncture, at minimum, it should remand the case to the district court for creation of a more fulsome factual record. The Supreme Court has relied upon a well-developed factual record when reviewing constitutional challenges to campaign contribution limits and similar rules. See Randall v. Sorrell, 548 U.S. 230, 253 (2006) (noting the record must be "independently and carefully" examined "to determine whether [the Act's] contribution limits are 'closely drawn' to match the State's interests"); see also McConnell v. FEC, 540 U.S. 93, 150–52 (2003) (invoking a voluminous record, including congressional committee reports, witness testimony, and other documentary evidence of corruption); FEC v. Colo. Republican Fed. Campaign Comm., 533 U.S. 431, 457 (2001) (concluding that "substantial evidence demonstrates how candidates, donors, and parties test the limits of the current law," and "how contribution limits would be eroded if inducement to circumvent them were enhanced by declaring parties' coordinated spending wide open").

The evidentiary record before this Court is sparse. This case was decided on a motion for permanent injunction, with limited fact-gathering. And as discussed above, the factual assumptions underlying older decisions of other circuits that bar contribution limits for super PACs have been seriously called into question. At minimum, the Court should require a factual record that reflects the post-Citizens United, super PAC-centered political landscape that is our reality today. Given the absence of such a record here, remand is warranted. See Ashcroft v. ACLU, 542 U.S. 656, 671–72 (2004) (remanding because the factual record did not reflect the "current technological reality," which significantly affected the court's strict scrutiny analysis); see also Thompson v. Hebdon, 589 U.S. 1, 6–7 (2019) (remanding to the circuit court to determine whether the record showed any "special justification" to uphold Alaska's contribution limits).

Expert testimony, additional legislative history, and other evidentiary materials would illuminate Maine's recent electoral history, the effects of super PACs on Maine voters' confidence in government, and whether less restrictive means—such as anti-coordination rules—can hope to achieve the State's anti-corruption interest. To that end, if the Court does not find for the State of Maine on the merits, the Court should at minimum grant the State the opportunity to properly shoulder its constitutional burden on the basis of an updated record.

This case presents a unique opportunity for the First Circuit to account for the lessons learned in the aftermath of SpeechNow and other decisions. The voters of Maine recognized the corruptive effects of allowing unlimited contributions to independent expenditure organizations and opted to impose reasonable limits. Their choice should not be set aside lightly. For these reasons, we urge the Court to reverse the judgment of the district court and uphold the Act.