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In 2010, the Supreme Court opened the floodgates to money in politics with its decision in Citizens United v. Federal Elections Commission.
The Court struck down longstanding federal restrictions on “independent” political spending by corporations and outside groups, ruling that such expenditures were protected “speech” under the First Amendment. Later that year, the D.C. Circuit Court of Appeals extended the logic of Citizens United to rule that contributions to “independent” outside groups and political action committees couldn’t be restricted either. In SpeechNow.org v. Federal Elections Commission, the court held that contribution limits also violate the First Amendment.
These rulings paved the way for the rise of super PACs—outside groups that receive and spend unlimited sums to influence national politics. From 2010 to 2022, according to the Brennan Center, super PACs spent $6.7 billion on federal elections, and in 2024, super PAC spending topped $2.7 billion. Much of this was so-called “dark money” not subject to federal disclosure requirements. Influential billionaires also dominate the list of donors to these groups.
For many campaign finance reform advocates, reversing Citizens United is the holy grail. The nonprofit group Public Citizen, for instance, has called for a constitutional amendment to overturn the Supreme Court’s decision—an effort Vermont Sen. Bernie Sanders has endorsed as well.
But with the success of such an amendment unlikely—and the possibility of a Supreme Court reversal unlikelier still—a group of prominent legal scholars is arguing for an alternative path. The Supreme Court could choose to end super PACs, they say, and without overturning Citizens United. The key instead is to reverse the DC Circuit’s ruling in SpeechNow, which critics say misapplied Citizens United.
Among these advocates is Lawrence Lessig, the Roy L. Furman Professor of Law and Leadership at Harvard Law School and the founder of Equal Citizens.org, a new nonprofit leading the legal campaign against super PACs. Lessig says a critical test will come this spring, when the First Circuit Court of Appeals hears a case involving a voter initiative passed in Maine last fall to limit super PAC contributions. Super PACs have assailed the restrictions as unconstitutional—an argument that’s likely to end up in front of the Supreme Court.
Lessig says his group will challenge a key factual assumption underpinning the DC Circuit’s reasoning in SpeechNow—that contributions to “independent” groups are not susceptible to corruption. Under Citizens United, the Supreme Court ruled that the only permissible rationale for limiting campaign spending is to prevent “quid pro quo corruption”—out-and-out bribery. Lessig argues super PACs do in fact promote that kind of corruption and could therefore be regulated—without violating the Court’s precedent in Citizens United.
This transcript has been edited for length and clarity. The full interview is available on Spotify, YouTube and iTunes.
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Anne Kim: Before we get into the specifics of the legal case that your group is helping to pursue, let’s set a little bit of context. Why super PACs? Most Americans have heard about dark money in politics, and we know that super PACs spend millions on campaigns. But how have they become so uniquely corrosive to democracy that you’ve made it a focus of your work?
Lawrence Lessig: I’ve actually been working on the corrupting influence of money for 18 years now, long before there were super PACs. And the reason was my belief that this was a gateway issue: If we didn’t solve this problem, we couldn’t solve any other serious problem sensibly.
We’ve moved from a system where there were effectively millions of people funding campaigns to a system where it’s a couple hundred families that are essentially responsible for the vast majority of spending in politics. This means a couple hundred families have enormous power over what our government can do. That is the basis of the kind of corruption that I think we have to find a way to end.
Garrett Epps: If I’m understanding, a super PAC is a PAC that gets contributions and then spends them independently, whereas a PAC can give money to candidates. And right now, super PACs can make unlimited independent expenditures and receive unlimited contributions and not disclose.
Lawrence Lessig: That’s right. But let’s be very careful about the “not disclose.” Garrett, you’ve written extensively about this, but it’s a distinction that most people miss. If I give a million dollars to a super PAC, they would have to record that Larry Lessig gave a million dollars to the super PAC. That would be reported.
But if I set up an organization, “Americans for a Better America,” and then I receive a million dollars from somebody to support that organization, we don’t have to report who’s actually contributed to that organization under current tax law. When that organization gives its money to the super PAC, the super PAC reports that Americans for a Better America has given them a million dollars, but we don’t know actually where that money came from.
That’s the “dark money” vehicle that has become dominant in the context of super PACs right now.
Anne Kim: So let’s start walking through the legal case that you’re building to bring down this edifice around super PACs. The story begins with a ballot initiative in Maine to limit contributions to PACs. It was called “Question 1,” and it passed overwhelmingly in 2024. Can you tell us a little bit more about that effort and what the referendum set out to do?
Lawrence Lessig: Let me take it a step before that. After Citizens United, which said you can spend unlimited amounts of money because there’s no risk of quid pro quo corruption, the DC Circuit [in Speech Now] said you can therefore contribute unlimited amounts of money because it similarly can’t create a risk of corruption.
That on the surface sounds like it could be true. But five years after that decision, my favorite senator, Robert Menendez, demonstrated the logical error in that position because he was indicted in 2015. The indictment said he engaged in quid pro quo corruption, and the “quid” was a contribution to Menendez’s super PAC. So the thing the DC Circuit said could not happen plainly happened.
Around this time, a former colleague of mine, Al Alschuler, began writing articles saying that Citizens United does not mean super PACs are constitutionally protected. And then Larry Tribe, Al Alschuler, Norm Eisen and Richard Painter wrote a piece in 2018 where they laid this out in a very powerful way.
At that point, I was trying to tee up challenges to super PACs grounded in “originalism.” And here, my second favorite Senator, Josh Hawley, is the hero, because Hawley in 2023 introduced a bill to overturn Citizens United. He said, as every originalist knows, that the original meaning of the First Amendment would never have restricted Congress’s power to control how corporations spend their money.
So I’ve been pushing to revive regulations of super PACs on the basis of originalism. But this wonderful group called Free Speech for People had been pushing Tribe’s and Alschuler’s and Painter’s and Eisen’s argument in the DC Circuit, which didn’t give them even the honor of an opinion but just ignored it.
So then Free Speech for People and Equal Citizens tried to get a ballot initiative in Massachusetts, but the Massachusetts Attorney General said it violated free speech and blocked it. When I told this story at a dinner in Maine, some key activists said, “Why don’t we just do it in Maine?” My group then committed to getting it on the ballot and raised the money to do it.
When I gathered signatures on Election Day 2023, in a small town called Hollis, Maine, the first guy to come up to me said, “I’m here gathering signatures to get Donald Trump on the ballot. What are you here for?” I showed him my initiative, and he said, “Hell, yeah!” He signed it and said, “I’m going to get everybody who signs my petition to come over and sign your initiative.” And he did. All these Trumpers came over and signed my initiative because in Maine, as in most of the country, people look at the system and say, “This is insane. We don’t want these super PACs, these billionaires, dumping their money in our elections.”
Maine has seen it a lot with foreign money coming in fighting energy issues. [Rep.] Jared Golden also had a very tough fight when he was elected because a bunch of hedge fund guys from Chicago came in and spent millions on his campaign. So it was a very ripe issue in Maine.
When we won on Election Day 2024 with 75 percent of the vote, more people voted for our initiative than have voted for anything ever in the history of Maine. It demonstrated that this is not a partisan question. It’s a pretty simple, obvious point that Americans don’t want a democracy controlled by the tiniest few who can spend billions to run the elections.
But within a month, it was challenged by two super PACs backed by Leonard Leo, who’s the biggest conservative super PAC guy in America today. The district court allowed us to intervene, and we recruited [former Acting US Solicitor General] Neal Katyal to be the lawyer.
Neal succeeded in losing the case in district court in the best possible way. In every other case where federal courts have upheld super PACs, they have said there’s no risk of corruption with a contribution to an independent political action committee. And because there’s no risk, there’s no legitimate government interest to regulate.
In the Maine district court, the district court judge said of course there’s a risk of quid pro quo corruption with a contribution to a super PAC. But then she crafted a whole new theory of the First Amendment to say that even though there’s a risk of corruption, there’s nothing the state can do about it. Well, that is the most extreme opinion ever in the history of federal jurisprudence about this issue and tees it up perfectly for the First Circuit, which has never considered the question before.
We’ll be in the First Circuit in the spring, and I think the court will get it right. And that means we will be in the Supreme Court because that will create an unavoidable split [with the DC Circuit].
In the Supreme Court, the argument we will make is that we’re not asking to overturn Citizens United but to agree that there’s a risk of corruption from contributions to super PACs and that’s why we should be allowed to regulate it. The Court has never said that in the face of corruption, there’s nothing the government can do.
And then the additional step is to bring in the originalist argument—that you should be allowed to regulate these contributions because under the original meaning of the First Amendment, there’s no doubt that the states or Congress would have the freedom to regulate to avoid this kind of corruption.
Anne Kim: One of the things that you have done with this case is to amass an incredible collection of amicus briefs filed on behalf of Maine citizens—people at the Brennan Center, the Center for American Progress, a collection of billionaires headed by Mark Cuban…
Lawrence Lessig: These nine briefs are amazing. And if you go to our website, you can download the PDF of those nine briefs. You can also get it on Amazon, a Kindle, and also a print book. They’re extraordinary to read because these are some of the best lawyers in the country. And the diversity of perspectives, including the Mark Cuban and four other billionaires perspective, is quite amazing to read.
You don’t have to feel sorry for billionaires, but you can understand how anything they say gets demeaned because everybody thinks the only reason anybody listens to this guy is because he’s a billionaire. Well, maybe they have good ideas independent of being billionaires, and they don’t want their ideas to be polluted by the assumption that the only reason they’re going to be heard is because they have money.
Anne Kim: Let’s assume the best-case scenario, and the Supreme Court rules in your favor. This doesn’t mean that super PACs go away overnight. What do you want to have happen as the next step, assuming that the Supreme Court does allow the regulation of contributions to these entities?
Lawrence Lessig: The dream is that the Supreme Court would revive the existing federal law struck down by the D.C. Circuit. So just like after Dobbs, when all those anti-abortion laws came back to life, all these limitations on contributions to political action committees would also spring back to life.
There’s a path here that by 2028, we could end federal super PACs. And wherever there is a state law that limited the size of contributions, that could come back to life as well. Now, there are one hundred ways in which the Court could avoid this, and there’s going to be a lot of push to get them to avoid this. I’m confident we’re right on the law, but I’m not exactly confident about how we could win.
The not-perfect scenario is that we win in upholding Maine, but then there’s got to be an army of other litigation and activism to try to revive these laws around the country.
And I think that will happen.
We did a poll way back at the beginning of my work on this and found that 96 percent of Americans thought it important to reduce the influence of money in politics, but 91 percent didn’t think it was possible. That’s the politics of resignation: We all wish we could fly like Superman, but we don’t leap off of tall buildings because we’re pretty confident we can’t.
But the point is, if all of a sudden you see a clear path to a real victory, there’ll be an enormous amount of energy that will stand up and try to do something about it. I think winning in Maine would be enough to revive a really important movement that had been basically suppressed by super PACs, which is the movement to change the way campaigns are funded and to drive towards citizen-funded elections.
Think about the New York mayoral election. [Zohran Mamdani] was a superstar candidate, obviously. He’s a Barack Obama-level superstar candidate. But he also was able to be credibly independent. He could credibly say, “I’m not beholden to any billionaire, and I don’t want any super PAC money.”
But the only reason he could do that was that New York has public funding for mayoral elections. That’s the next stage: to revive the movement to change the way we fund elections so that we don’t have a world where members of Congress and candidates for Congress spend 30 to 70 percent of their time raising money.
Anne Kim: If people are listening to this and want to get involved, what can they do? Tell us about Equal Citizens.
Lawrence Lessig: So equalcitizens.us is the site where you can sign up to learn about the case.
I think 90 percent of this is to change the conventional wisdom about this case. Ninety eight percent of the lawyers I talked to about this immediately said, “Look, there’s no chance in hell.” Indeed, Neal Katyal, who was a friend of mine, avoided my calls for months.
Finally he took a call and he said, “Larry, look, it’s a loser. I don’t want to have anything to do with it. I don’t think I have a chance of winning.” And I said, “Neal, just let me have one lunch. So I went to Washington and he took me to the worst restaurant in Washington and halfway through the lunch, he said, “My God, I think you’re right. I think I can win this case.”
So the point is it takes a lot to get people to the place where they understand why this is right on the law. And I think that’s critically important because if the Court goes against us, that is a hugely important signal of just how corrupted the Court has become.
I love Bernie Sanders, but he goes around all the time saying super PACs are a devastation to American democracy, which is true. And then he says, so therefore we have to overturn Citizens United, which is false!
If you think the only way for us to win is to overturn Citizens United, then when the Supreme Court does not overturn Citizens United—which it is not going to do—you might think, well, the Court hasn’t reversed one of its opinions. Maybe I don’t like the opinion, but it’s not a terrible thing if the Court doesn’t reverse its own precedent.
But this would be much worse than that. If we don’t win in the Supreme Court, it’s not that they didn’t reverse their precedent, it’s that they changed their precedent. It’s that they basically said there’s no ability for the people or their representatives to control corruption in the political system. And that would be a devastating conclusion from the Court.
We’ve got to get people to see how important it is to give the Court a chance to do the right thing. And if they do the right thing, congratulate and praise them for doing the right thing because their law, their principles, and their decisions mean that Maine should have the right to block super PACs in Maine.
