We can’t know what might have happened had Holder made a different decision and challenged SpeechNow, but it’s helpful to consider counterfactuals.
One possibility: the Obama Justice Department might have prevailed at the Supreme Court by challenging SpeechNow inside the confines of the then-recent Citizens United decision, which still upheld the long-standing doctrine that contributions can be limited if there is a legitimate risk that they can be corrupting. In this scenario, the win would have prevented billionaires from dumping tens of millions of dollars into super PACs, consequently preventing at least some of the endemic corruption of the last sixteen years.
But there’s also a more negative counterfactual: if the Obama Justice Department had challenged SpeechNow back in 2010, the Roberts Court might have declined to hear the appeal or worse, affirmatively validated the lower court’s ruling. This could have made the SpeechNow doctrine a full Supreme Court precedent, making it much harder for a state to cite data from the last sixteen corrupt years to later overturn the decision — which is what Maine is trying to do now.
In 2024, voters from the New England state overwhelmingly passed a ballot measure placing limits on contributions to super PACs. The initiative was quickly challenged in court by what the Lever calls the master planners — the conservative groups that have successfully deregulated campaign finance laws over the last fifty years.
In their challenge, conservatives are predictably citing SpeechNow as the reason courts should block implementation of the ballot measure. But in a sign of how scared they are, these plaintiffs complain that the ballot measure’s “proponents designed it to prompt a test case, intended to reach the U.S. Supreme Court” — which is exactly right.
Harvard law professor Larry Lessig, Equal Citizens, and the measure’s other architects deliberately designed the ballot measure to be the challenge that Holder’s Justice Department declined to bring. As Lessig told me on a recent episode of Lever Time, they sculpted it to force the SpeechNow question up to the Supreme Court — and they are now armed with evidence that was not as readily available back in 2010.
Remember, SpeechNow is premised on two shaky assumptions: 1) super PACs are independent from candidates, and 2) that alleged independence means donations to super PACs cannot possibly be part of quid pro quo corruption schemes influencing candidates, and therefore the First Amendment means they cannot be limited.
The vulnerability in this legal fortress is the second assumption. If you prove that super PACs actually can be part of quid pro quo corruption schemes, then that means donations to those slush funds can be limited via existing doctrines upheld by Citizens United — specifically, the old Buckley v. Valeo doctrine upholding “the basic governmental interest in safeguarding the integrity of the electoral process.”
This vulnerability is what proponents of Maine’s ballot initiative are now honing in on in court. In their briefs, they point to various examples in which high-profile politicians (Democratic Sen. Bob Menendez, Republican Ohio House Speaker Larry Householder, etc.) have been prosecuted for quid pro quo schemes that directly involve super PACs.
These examples prompted a landmark first-of-its-kind admission in an initial court ruling in Maine’s case: “Contributions to independent expenditure PACs can serve as the quid in a quid pro quo arrangement.”
Boom.
The bad news is that the same judge who acknowledged this reality in her initial ruling did not allow Maine’s ballot measure to go into effect. But the case is now moving up the judicial ladder, potentially on its way to finally challenging SpeechNow at the Supreme Court.
This battle is one of a number of promising new campaign finance initiatives aimed at forcing greater disclosure of election spending and restricting oligarchs’ outsize power in politics. And though Maine’s case will never be a panacea, it is a rare and real counteroffensive to the fifty-year master plan.