- The Alaska Supreme Court could upend the big money systems that have come to fund US elections.
- The case argues that super PACs corrupt our systems of government by making politicians far too dependent on a small number of super-wealthy donors.
- Following a ruling in the Alaska Supreme Court, the question could go to the US Supreme Court.
- John Bonifaz is cofounder and president of Free Speech For People.
- Ben Clements is board chair and senior legal advisor of Free Speech For People.
- Ron Fein is legal director of Free Speech For People.
- This is an opinion column. The thoughts expressed are those of the authors.
- Visit the Business section of Insider for more stories.
On January 20, while the country was focused on the presidential inauguration, the Alaska Supreme Court heard arguments in a case that could upend the big money systems that have come to fund the nation’s elections. It’s time for the rest of the country to pay attention.
The case comes from Lawrence Lessig, a law professor at Harvard and founder of the organization EqualCitizens, who spent Inauguration Day on Zoom arguing against super PACs.
A super PAC (political action committee) is a way for big money donors to ignore federal, state, or local political campaign contribution limits. The big donors give money to these slush funds that in turn spend big on elections, but (supposedly) don’t coordinate their spending with politicians. Since 2010, corporations and mega-wealthy donors have used these super PACs to bypass legal limits on contributions to political candidates and dump unlimited amounts of money into politics.
Are super PACs corrupt?
The Alaska case hinges on a simple question: is this practice corrupt? Under Supreme Court precedent, the public can limit the size of political contributions to prevent corruption. Most Americans understand on a gut level why a single mega-donor’s ability to write an unlimited check to a super PAC looks rotten. But some courts have said that corruption only exists where there’s a “quid pro quo” — essentially, a bribe.
Lessig’s case asks the Alaska court — and potentially the US Supreme Court — to recognize a different type of corruption. His argument relies on originalism, an interpretive technique that examines how ordinary people would have understood the Constitution back when it was first proposed. In support of his originalist argument, Lessig marshals impressive evidence that the framers’ generation had a deep and capacious understanding of political corruption.
People back then understood bribery, of course. But they also worried about institutional corruption: even if a particular individual isn’t taking bribes, an institution as a whole can become corrupted by an improper dependence on anything other than the support of voters. And super PACs corrupt the system by making politicians far too dependent on a small number of super-wealthy donors.
That’s essentially what the Alaska legislature concluded back in 1996, when it found that “organized special interests are responsible for raising a significant portion of all election campaign funds and may thereby gain an undue influence over election campaigns and elected officials, particularly incumbents.” That year, the state passed a law prohibiting contributions of more than $500 per year to so-called independent political groups. (When the legislature later tried to double the maximum to $1,000, the public voted by an overwhelming 73% margin for a ballot initiative to reinstate the $500 limit.)
But for nearly a decade, wealthy donors have been writing checks to Alaska political groups for tens of thousands of dollars — quite a lot of money for elections in the Land of the Midnight Sun. They’ve been getting away with that because the state has taken the view that court decisions prevent it from enforcing the $500 legal limit.
The legal precedent for super PACs
Many people believe that the US Supreme Court’s decision in Citizens United v. Federal Election Commission, which allowed corporations to spend money directly in elections, compels this result. But Citizens United, bad as it was, didn’t say anything about super PACs. Instead, starting a few months after the Citizens United decision, a handful of lower courts, based on an unfortunate misunderstanding of Citizens United, decided that the Constitution forbids limiting contributions to super PACs. To this day, the US Supreme Court has never ruled on this issue.
But if the Alaska Supreme Court rules in Lessig’s favor — and quite possibly, even if it rules against him — then this question will probably go up to the US Supreme Court. And Lessig’s tack might well persuade some of the four justices who lean conservative but have expressed a commitment to the originalist method. (Full disclosure: we were part of a separate team of lawyers, including Lessig’s Harvard colleague Laurence Tribe, that represented Congressman Ted Lieu of California, Senator Jeff Merkley of Oregon, and others in an earlier case that tried to bring this issue before the Court, and we’re working on other efforts that involve this question.)
A favorable Supreme Court decision would impact the entire nation. For federal elections, Congress doesn’t even need to pass new legislation: there’s already a law on the books limiting contributions to independent political groups to $5,000 per year. (That’s a lot of money, but it’s much less than the multi-million dollar checks that megadonors write to super PACs right now.) After a Supreme Court victory, that law could be put back into effect with no further action from Congress. Other states or cities could revive old laws or pass new ones. We could finally put an end to the threat of super PACs in our elections.
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