A major US court case could help fix the ills of Citizens United | David Sirota

Slush funds of anonymous unregulated money are now the dominant institutions in American politics, converting our elections into auctions – and transforming the legislative process into a donor bidding war.

In the last election, Pacs and Super Pacs spent more money to buy federal elections than all candidate campaigns combined. One in every $5 flowing through a Super Pac came from organizations that do not disclose their donors. In all, $2bn of “independent” spending was dark money, meaning the public cannot see who is buying elections – even though politicians know exactly who they owe once they are in office.

The current election cycle promises to be even worse: Super Pacs have already spent nearly a quarter of a billion dollars, fueled by donors in the artificial intelligence and cryptocurrency industries demanding policy favors from Washington. Again, much of it is anonymous cash: for example, new campaign finance filings show the second-largest donors to House and Senate Republicans’ Super Pacs are dark money groups.

Polls show most of us hate this system and know that Citizens United v FEC helped create it. But most don’t know that the notorious 2010 supreme court decision was only one of two legal doctrines creating this pay-to-play griftopia. And almost nobody remembers that the other lesser-known doctrine has never actually been tested at the high court, because justice department officials never challenged it when they had the chance.

But ahead of the midterms and the 2028 presidential race, this legal void could finally be filled – thanks to a Maine lawsuit that has suddenly become the most significant anti-corruption battle inside America’s legal system.

The little-noticed case that followed Citizens United

The 2010 Citizens United decision, written by the former corporate lobbyist Justice Anthony Kennedy, is known for striking down limits on spending by Super Pacs and declaring: “Independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.”

The sheer gall of that decision overshadowed an equally far-reaching lower-court decision two months later: SpeechNow v FEC, which struck down limits on contributions to those Super Pacs. Without SpeechNow, oligarchs would have had a far harder time over the last 16 years anonymously purchasing elections via Super Pacs, because those entities would have had to rely on much smaller donations and would not have been able to grow so large and so fast.

In 2010, the Obama justice department had a chance to challenge SpeechNow when the ruling was handed down by the DC circuit court, but the attorney general, Eric Holder, opted against a challenge. Holder asserted that SpeechNow will “affect only a small subset of federally regulated contributions”.

That presumption aged like milk. The Washington Post reports that independent expenditures are now more than a quarter of all spending in elections and that “1 in 13 dollars spent in last year’s national elections was donated by a handful of the country’s richest people”.

‘Proponents designed it to prompt a test case’

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 longstanding 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, preventing at least some of the endemic corruption of the last 16 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 16 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 we at the Lever call the master planners – the conservative groups that have successfully deregulated campaign finance laws over the last 50 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.

The 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: first, that Super Pacs are independent from candidates, and second, 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 homing in on in court. In their briefs, they point to various examples in which high-profile politicians (the Democratic senator Bob Menendez, the 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’ outsized power in politics. And though Maine’s case will never be a panacea, it is a rare and real counteroffensive to the 50-year master plan.

‘As Maine goes, so goes the nation’

Of course, success inside the US’s conservative-packed judiciary is hardly guaranteed. After all, the Maine case could be on the verge of merely delivering the same negative counterfactual that might have occurred had Holder unsuccessfully challenged SpeechNow back in 2010. That’s what the master planners want, as evidenced by the US Chamber of Commerce’s recent amicus briefs in the appeals case.

But perhaps this time is different.

Perhaps this particular case has a real shot because it has been deliberately engineered to stay within the confines of the Roberts court’s own precedents.

Perhaps this case gives justices lamenting the court’s loss of legitimacy a way to combat the corruption problem they are blamed for – and in a way that doesn’t compel them to admit they were wrong about Citizens United, one of their most unpopular decisions of all.

Perhaps the court’s most partisan jurists will see that allowing states to limit Super Pac donations within the Citizens United framework will ultimately hit both parties’ political machines – and not automatically advantage one party over the other.

Perhaps Lessig is right that the lower court’s new long-overdue admission of reality – that Super Pacs absolutely can be vehicles for quid pro quo deals – offers the first serious chance in decades to combat the entire corruption industry.

“The core justification for regulating contributions to a political action committee – that they create a risk of quid pro quo corruption – is real,” he wrote. “The whole foundation for SpeechNow is gone.”

Decades ago, there was a famous political saying: “As Maine goes, so goes the nation.”

That axiom once again rings true – only not about a national election, but about America’s entire political system.

• David Sirota is a Guardian US columnist and an award-winning investigative journalist. He is an editor at large at Jacobin, and the founder of the Lever. He served as Bernie Sanders’ presidential campaign speechwriter