December 29th was the deadline for pro-Plaintiffs amicus briefs in the Dinner Table Action First Circuit appeal concerning Maine’s super PAC contribution limits. Plaintiffs were only able to muster one amicus in support: the U.S. Chamber of Commerce. It’s not surprising that the Chamber filed an amicus brief — it also filed one in the District Court, and both briefs are materially identical. I’m attaching the First Circuit amicus brief here.

The Chamber’s brief makes three arguments. 

First, it argues that the First Amendment guarantees Maine citizens’ right to have their voices heard through super PACs. This argument describes (with argumentative spin) cases like Citizens United and SpeechNow.org, and ultimately concludes (without citing any authority) that super PACs “amplify[] voices in the marketplace of ideas and expos[e] Americans to new perspectives and insights,” and “help inform voters and expand political discourse.”

Second, the brief argues that Maine’s contribution limits are a direct challenge to Citizens United. The purpose of that framing is obvious — the First Circuit is bound by SCOTUS precedent, including Citizens United, so if the Maine law is incompatible with Citizens United, the case is closed. Of course, the Chamber’s framing is a mischaracterization of Defendants’ argument (Citizens United didn’t even address contributions!). In any event, the Chamber argues that “increased spending on speech is never itself a problem for the government to address” because “it is a candidate’s message that wins or loses the day.” This completely ignores the reality that money shapes discourse, influences lawmakers, and ultimately dictates policy far more often than not.

The brief ends by arguing that “[a]lternative arguments that the Act is somehow compatible with Citizens United are unpersuasive.” This assertion fails for the same reason the argument above fails — namely, the Chamber conflates Citizens United and SpeechNow.org. The Chamber’s brief argues that the same reasoning “undergirds both cases,” but the two cases address fundamentally different transactions. Contributions and expenditures are not the same and, as we argued in our brief (and other pro-Defendants amici argued in theirs), should not be treated the same.

A final note: Unlike Plaintiffs’ brief, the Chamber’s brief actually responds to some of the other amicus briefs filed, including ours [i.e., the amicus brief filed on behalf of a bipartisan coalition of former elected officials who are members of Issue One’s ReFormers Caucus]:

• On page 13, the Chamber’s brief writes: “On appeal, amici have likewise been candid enough to admit that their ultimate goal is the reversal of Citizens United itself.” We did not argue that position. The Chamber’s brief cites the following language from our brief: “The predictable and demonstrable result [of Citizens United] has been an explosion in outside spending, overwhelming the role of ordinary voters and undermining confidence in the democratic process.” The Chamber misrepresents our brief. We were referring to Citizens United and SpeechNow.org. The Chamber’s bracketed alteration only addresses Citizens United, which is brazenly misleading.

• On page 14, the Chamber cites our brief and others after claiming that supporters of the Maine law view “increased political speech . . . with disdain.” The Chamber points to the argument in our brief where we note that super PACs “flood[] the political process with attack ads.” But again, the Chamber’s brief is mischaracterizing our argument. As we say at the very beginning of our brief, the explosion of money in politics hasn’t resulted in a corresponding increase in political speech, it has corresponded with an increase in concentrated influence.
  

• Finally, on page 20, the Chamber characterizes our brief as arguing that the Maine law is necessary because it levels the playing field by reducing the influence of wealthy individuals. The Chamber’s brief quotes the following language in our brief: “Super PACs elevate the voices of the wealthy few over those of the average citizen.” But our fundamental argument is not that the law is constitutional because it levels the playing field. It is constitutional because it addresses the very real corruption risk that SCOTUS has recognized since Buckley. That it also prevents the dilution of the voices of ordinary citizens is an added benefit that is an appropriate point for amici to acknowledge.

Defendants-Appellants (including Equal Citizens) will file their reply briefs at the end of this month

[Evan represented Amici Curiae Former Members of Congress and Former Governors, who filed an amicus brief in Dinner Table Action in support of Defendants-Appellants. The views expressed in this response are his own and do not necessarily reflect those of his clients.]