This morning, the battle heads to an appeals panel for oral arguments. The next step could be the high court.
Lessig isn’t trying to overturn Citizens United. He says the country has overread it, and it should never have been able to fuel a dramatic rise in unregulated campaign spending.
“It's a reviled decision, but I think it's really the most misunderstood decision in recent Supreme Court history,” Lessig told The Gavel.
He sought the presidency in 2016 as a Democrat. Republican interests are on the other side of the case. Still, Lessig sounded optimistic in our conversation on Tuesday that he can find allies at the conservative-majority Supreme Court.
Justice Samuel Alito, a conservative who was part of the Citizens United majority, has long expressed dismay with the critical public reaction to the decision.
“In our much maligned — I think unfairly maligned — decision in Citizens United,” Alito lamented during an oral argument earlier this term as he fired off a question.
To those who see it narrowly, the decision was about the constitutional rights of a nonprofit corporation to air a critical documentary about Hillary Clinton. That’s it.
In the years since, Citizens United has more broadly become synonymous with dark money in politics.
Super PACs emerged following the 2010 decision. They allow groups to raise and spend unlimited amounts, so long as they don’t coordinate with a candidate or donate directly to them.
“People look at it, and they say there's just no chance in hell that Elon Musk spends $270 million on a campaign and is not getting something in exchange for it,” Lessig said.
Lessig and his supporters say the broad impact is based on a misunderstanding. Citizens United concerned expenditures. The Maine measure is about contributions.
“There's two very different streams of law,” he said.
Lessig places the blame two months after Citizens United, when an appeals court in the nation’s capital applied the ruling to decide a case called SpeechNow.org v. Federal Election Commission.
That decision made the leap and ruled contribution limits for independent groups unlawful. Several appeals courts around the country soon followed. Lessig says it stopped most lawyers’ thinking.
“The law gets settled, in a sense, too early,” Lessig said.
That’s where Maine comes in.
In 2024, Maine voters backed a measure championed by Lessig that limits donations to super PACs to $5,000. It was designed to question that legal status quo.
No surprise, the measure came under a lawsuit from two Republican-connected Maine PACs, Dinner Table Action and For Our Future. They say the limits would violate their free speech rights.
“All Americans, not just those running for office, have a fundamental First Amendment right to talk about political campaigns,” they wrote in court filings.
They won before the trial judge. On Wednesday, the fight turns to the U.S. Court of Appeals for the 1st Circuit. A three-judge panel — two appointed by former President Obama, the other appointed by former President Biden — will take the bench in Boston to consider the case.
Whoever loses can appeal next to the Supreme Court.
In a sign of what’s to come, a veteran Supreme Court advocate has already signed onto Lessig’s case. Neal Katyal, who once represented the Obama administration before the justices and recently defeated Trump’s emergency tariffs, will take the lectern Wednesday.
Assuming the battle does ultimately land at the Supreme Court, Justice Brett Kavanaugh has already made his thoughts known.
Years before Trump had his eyes on Kavanaugh, he was part of that lower court majority in SpeechNow that Lessig thinks is a mistake. Last month, Kavanaugh again cited it as the court decided a case that dealt with political parties’ spending.
Super PACs “have a First Amendment right to receive... unlimited money,” Kavanaugh emphasized.
Lessig’s opponents have called it “game over.”
Katyal replied, “Wrong.”
As the case creeps closer to the Supreme Court, there’s another question of whether the court would agree to take up the case. Lessig said he thinks the justices may have an interest.
“The whole country will say, ‘Huzzah! That's brilliant! Wonderful! The Supreme Court has finally done the right thing,” Lessig said. “But from their perspective, they're going to be like, 'Yeah, we've always said this, and we're not responsible for the super PAC mistake.”
“And so now, we give them a chance to correct it.”
