Brief of Amicus Curiae
Mainers for Working Families

Interest of Amicus Curiae

Amicus Curiae Mainers For Working Families (MFWF) is a nonprofit that advocates for policies, including democracy reform, that help Maine families thrive. It promotes fair elections and democracy reform so that Maine families have a meaningful political voice, educates Maine communities about policies that affect working families, and seeks to empower working families through legislative literacy. MFWF supports the appeal by the defendants-appellants because unlimited contributions to political action committees put Maine elections at risk of corruption and undermine Maine families' meaningful participation in fair elections, and because Maine's law is constitutional.

Introduction and Summary of Argument

Super PACs have changed the landscape of U.S. elections. Though contributions to candidate- and party-controlled political action committees (PACs) are subject to reasonable limitation, contributions to independent expenditure PACs are not. The result is the super PAC: a PAC that can receive millions of dollars in contributions because they make only independent expenditures, are critically important to the success of a candidate's campaign, and create vast and virtually untraceable opportunities for corrupt agreements between contributor and candidate.

By November 2024, Mainers had enough. 75% of voters in the state voted to place reasonable contribution limits on PACs that only make independent expenditures (referred to herein as "IE PACs" or "super PACs"), significantly disincentivizing the funneling of quid pro quo payments through these PACs. The district court's decision to enjoin the law has disempowered Maine voters, kept Maine elections vulnerable to quid pro quo corruption, and collapsed the legal expenditure-contribution distinction in disregard of nearly fifty years of Supreme Court precedent.

The First Circuit should reverse the district court's ruling. The Supreme Court has long distinguished between political expenditures and contributions, subjecting expenditures to exacting scrutiny and contributions to lesser "close drawn" scrutiny, and upholding contribution limits even where it strikes down expenditure limits. Under this enduring framework, it is clear that Maine's law is constitutional: it places no limit on expenditures; it limits only contributions; and it does so in order to protect the state's interest in preventing quid pro quo corruption and the appearance of corruption.

The district court wrongly presumed that the recipient of the contributions changes this analysis. It does not. Unlimited contributions to IE PACs create opportunities for corruption because the contributor likely is closer to, not further removed from, the candidate. And because these contributions, like all political contributions, "entail[] only a marginal restriction upon the contributor's ability to engage in free communication," Buckley v. Valeo, 424 U.S. 1, 20 (1976), they are scrutinized under a lesser standard than the independent expenditures themselves.

The district court's analytical errors stem first, from its misunderstanding of the Supreme Court's expenditure-specific findings in Citizens United v. FEC, 558 U.S. 310 (2010); second, from its reliance on the wrongly decided SpeechNow.org v. FEC, 599 F.3d 686 (D.C. Cir. 2010) (en banc), a D.C. Circuit court ruling not binding on this court, which struck a federal law limiting IE PAC contributions because of its fundamental misunderstanding of how IE PACs work and of prior Supreme Court rulings; and third, from its minimization of relevant facts developed in the fifteen years since SpeechNow, which have thrown SpeechNow's faulty logic into sharp relief and unequivocally support Maine voters' state interest in ending unlimited super PAC contributions.

I. The Supreme Court subjects contribution limits to lesser scrutiny than expenditure limits and typically upholds them.

In Buckley v. Valeo, 424 U.S. 1 (1976), the Supreme Court considered First Amendment challenges to the Federal Election Campaign Act (FECA). 52 U.S.C. § 30101, et seq. (formerly codified at 2 U.S.C. § 431, et seq.). The Act was Congress' response to "deeply disturbing examples [of corruption] surfacing from the 1972 election" and imposed disclosure requirements, restricted media advertising expenditures, and limited contributions. Buckley, 424 U.S. at 27. Its "primary purpose [was] to limit the actuality and appearance of corruption resulting from large individual financial contributions." Id. at 26.

In reviewing FECA, Buckley distinguished between expenditure limits and contribution limits, subjecting only expenditure limits to more "exacting scrutiny" because they directly restrict election-related communication and thus "heavily burden[] core First Amendment expression." Id. at 44-48. By contrast, contribution limits received lower scrutiny because they "entail[] only a marginal restriction upon the contributor's ability to engage in free communication." Id. at 20. "As a general expression of support for the candidate and his views," contribution limits pose "little direct restraint on [the speaker's] political communication . . ." and "do[] not in any way infringe on the contributor's freedom to discuss candidates and issues." Id. at 20-21; see also McCutcheon v. FEC, 572 U.S. 185, 196-97 (2014) (plurality opinion) (discussing Buckley).

Applying this two-tiered approach—distinguishing between contributions and expenditures and subjecting only the later to exacting scrutiny—the Buckley Court held that the government's interest in preventing "the actuality and appearance of" corruption was insufficient to justify FECA's expenditure limits, but "constitutionally sufficient" to uphold contribution limits for individual candidates under the lesser "closely drawn" scrutiny. 424 U.S. at 25-27, 47-48; see also Daggett v. Comm'n on Governmental Ethics & Election Pracs., 205 F.3d 445, 456-58 (1st Cir. 2000) (anything more than an "illusory" threat of corruption is a sufficient state interest to justify contribution limits).

Since Buckley, the Supreme Court has "routinely struck down limitations on independent expenditures . . . while repeatedly upholding contribution limits." FEC v. Colo. Republican Fed. Campaign Comm. ("Colorado II"), 533 U.S. 431, 441-42 (2001); see also Colo. Republican Fed. Campaign Comm. v. FEC, 518 U.S. 604, 610 (1996) (opinion of Breyer, J.) ("[m]ost of the provisions this Court found unconstitutional imposed expenditure limits"). The Court upheld limits on coordinated party expenditures that are functionally indistinguishable from direct party contributions to candidates. Colorado II, 533 U.S. at 464-65. It upheld contribution limits for multicandidate political committees; because the limit prevented contributors and candidates from "easily evad[ing]" direct contribution limits, it is "an appropriate means . . . to protect the integrity of contribution restrictions upheld by this Court in Buckley." Cal. Med. Ass'n v. FEC, 453 U.S. 182, 184-85, 198-99 (1981). It also upheld limits on "soft money" contributions to political parties (used to benefit candidates without expressly advocating for their election) because they prevent corruption, its appearance, and the circumvention of other contribution limits. McConnell v. FEC, 540 U.S. 93, 122-26 (2003); see also Republican Party of La. v. FEC, 581 U.S. 989 (2017) (summarily reaffirming this holding); Republican Nat'l Comm. v. FEC, 561 U.S. 1040 (2010) (same). The Court's rationale has been consistent: the exacting scrutiny that applies to expenditures does not apply to contributions.

The First Circuit relied on Buckley's two-tiered system to uphold contribution limits in the Maine Clean Election Act, noting that "Maine voters as well as legislators and those intimately involved in the political process have valid concerns about corruption and the appearance thereof caused by large contributions," and taking "the fact that Maine voters approved the referendum imposing reduced contribution limits as indicative of their perception of corruption." Daggett, 205 F.3d at 456-58.

Citizens United v. FEC, 558 U.S. 310, 372 (2010), which invalidated a federal statute banning corporate political expenditures, maintained this approach. Reiterating that expenditures are "political speech," the Supreme Court reasoned that "[t]he anticorruption interest is not sufficient" to restrict independent expenditures. Id. at 329, 357. Citizens United looked only at independent expenditure limits, applied the exacting scrutiny standard that Buckley set forth for analyzing expenditure limits, and took pains to contrast expenditures and contributions. Indeed, in its analysis the court noted that contribution limits "unlike limits on independent expenditures, have been an accepted means to prevent quid pro quo corruption," Citizens United, 558 U.S. at 359 (citing FEC v. Nat'l Right to Work Comm., 459 U.S. 197, 206 (1982)), and that it had upheld direct contribution limits "to ensure against the reality or appearance of corruption." Id. at 357.

II. The district court's decision contradicts fifty years of Supreme Court precedent distinguishing between contributions and expenditures and fifteen years of evidence confirming that super PACs lead to corruption and its appearance.

The district court's decision was based on its simple, but erroneous, assertion that, "[i]f the government's interest in combatting the appearance of corruption was not enough to justify limits on independent expenditures [in Citizens United], it stands to reason that the same interest is not enough to justify limits on contributions to independent expenditures." JA 354. In reaching this conclusion, the court relied heavily on a D.C. Circuit case, decided shortly after Citizens United, and other decisions that followed quickly in its wake, holding that a federal law limiting contributions to PAC's was unconstitutional as applied to IE PACs. See SpeechNow.org v. FEC, 599 F.3d 686, 696 (D.C. Cir. 2010) (en banc) ("because Citizens United holds that independent expenditures do not corrupt or give the appearance of corruption as a matter of law, then the government can have no anti-corruption interest in limiting contributions to independent expenditure-only organizations."), cert. denied on unrelated issue sub nom. Keating v. FEC, 562 U.S. 1003 (2010).

The district court's reasoning, like the circuit decisions it followed (none of which are binding on this court), is fallacious. First, it contradicts the fundamental distinction drawn in Buckley, Citizens United, and every other modern Supreme Court campaign finance decision, between expenditure limits, which are subject to strict scrutiny and almost always unconstitutional, and contribution limits, which are subject to lesser "closely drawn" scrutiny and generally constitutional. In doing so, it failed to recognize that, unlike limits on independent expenditures themselves, limits on contributions to PACs (independent or otherwise) "entail only a marginal restriction" on speech, regardless of what kind of expenditures those PACs go on to make. See Buckley, 424 U.S. at 20; McConnell, 540 U.S. 122-26 (upholding soft money contribution limits). Further, contrary to the district court's reasoning, even if an organization's spending does not corrupt, a contribution to the organization can still be the payment part of a quid pro quo transaction. Contributions to super PACs, like contributions to any other "third party" made by a donor at the behest of a candidate, may be part of a quid pro quo corrupt agreement, even if the recipient of the payment (the super PAC itself) is ignorant of the corrupt agreement. Finally, the public record (which the district court largely ignored) amassed in the fifteen years since SpeechNow, in which elections have become dominated by the millionaires and billionaires who fund candidate campaigns with massive (often multi-million dollar) contributions funneled through super PACs, has proven beyond any question that contributions to super PACs can and do lead to quid pro quo corruption and its appearance, shattering public faith in our elections.