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At the core of the lower federal court decision that gave us super PACs—SpeechNow v. FEC (D.C. Cir. 2010)—lies a mistake. A logical mistake. And it is astonishing that 13 years after that mistake, no court has yet to correct it.
That mistake, put most simply, is this: The D.C. Circuit held that there could be no "quid pro quo" corruption involved in a contribution to a super PAC. That if, as the Supreme Court had just held, an expenditure independent of a candidate could not involve quid pro quo corruption, then a contribution to support that independent expenditure "also cannot corrupt or create the appearance of corruption."
Yet seven years later, the Department of Justice proved that claim flat-out false. The government had charged Senator Robert Menendez (D-N.J.) with entering into a deal with a wealthy Florida man involving favors by Menendez in exchange for a contribution to a super PAC. That deal—if it had been proven—would have been quid pro quo corruption. Yet that corruption involved a contribution to a super PAC. What the D.C. Circuit had held as a matter of law could not happen, had, according to the Justice Department, in fact happened.
The D.C. Circuit's decision—never reviewed by the Supreme Court—has never been questioned by any other lower federal or state court. Every court to consider the matter has concluded that contributions to independent expenditure committees, like expenditures by those committees, could not involve quid pro quo corruption, and, therefore, cannot, under the First Amendment, be limited. Just this year, the Massachusetts Supreme Judicial Court refused to allow a ballot initiative on super PACs to go forward after the attorney general deemed it a violation of "free speech."
It's kind of astonishing: Tens of thousands of pages of legal briefs and arguments later, and still, at the core of campaign finance law lies a "2 + 2 = 5" error.
Correcting this error is critical to our democracy. Super PACs dominate political spending in America.
They have increasingly taken over the very mechanism of campaigning. Ron DeSantis' super PAC has raised and spent more money than Ron DeSantis. The same will be true for every major presidential candidate—and practically every major congressional contest. These massive machines of political influence draw their support from a tiny few.
So, if the lawyers can't get the judges (and most lawyers) to see the mistake behind the case that gave us super PACs, who could? If pages and pages of legal briefs don't persuade, what other technique might?
On Labor Day, we launched a video competition with a crowdfunded $50,000 prize for the most creative and compelling video demonstrating the error that gave us super PACs. Anyone, anywhere, can enter this competition: lawyers, law students, film students, ad executives, even AI. Anyone is free to try their hand at making obvious what is clearly correct: that contributions to super PACs create a risk of quid pro quo corruption just as contributions to candidates do.
We're trying this strategy because we need a way to break through conventional wisdom. If lawyers can see the argument made visually and compellingly, maybe then they can see what should have been obvious at the very start: that James Madison's First Amendment does not require super PACs, and more importantly, nothing the Supreme Court has said does so either.
The fight to undo the corruption of super PACs begins by making the error that created them obvious. A video won't reverse a doctrine endorsed by most federal circuit courts. But if the truth in these videos becomes obvious, then it will be harder for other courts to repeat the mistake.
Recently, an initiative was filed with the Secretary of State in Maine limiting contributions to super PACs. If that initiative gets on the ballot and passes, then the First Circuit (a court that has not ruled on the super PAC question) will get a chance to consider the matter. If that court upholds that initiative, then the Supreme Court will have a chance—finally—to address the matter.
People are skeptical that this Court would get it right. When I (defending a similar initiative) suggested to the judges of the Massachusetts Supreme Judicial Court that the conservatives on the Supreme Court might decide the question in a principled manner, the courtroom broke out in laughter.
But nothing the Supreme Court has said gives us any reason to believe that they would strike down limits on contributions when such contributions plainly risk quid pro quo corruption. They told us—repeatedly—that that is the law. We should take them at their word. And maybe, just maybe, a few powerful TikTok or YouTube videos will get the lawyers who stand between this truth and the Supreme Court to reconsider their cynicism. Because if they do, then, just maybe, the corruption that is super PACs may finally come to an end.
Lawrence Lessig is the Roy L. Furman Professor of Law and Leadership at Harvard Law School and the author of the book They Don't Represent Us: Reclaiming Our Democracy.
The views expressed in this article are the writer's own.
