This piece originally appeared in the Portland Press Herald – Maine Sunday Telegram on October 27 2024.

Voters face a critical decision that will significantly affect Mainers’ First Amendment right to free speech. We all have the right to speak about a political candidate without limit. But should the government restrict the political speech of two, three or hundreds of people when they join together to do the same?

Question 1 on this November’s ballot addresses that issue, asking whether the government can set a limit on how much we can spend to speak if we do it together as a group. The proposal would set a $5,000 limit on contributions to political action committees (PACs) that make independent expenditures to support or oppose candidates, also sometimes called “super PACs.”

Independent expenditures are political spending, by definition, not coordinated or approved by the candidate. They can be spent on many forms of political speech, such as running ads, sending mailers or organizing get-out-the-vote efforts to support or oppose a candidate. While proponents claim that this fall’s ballot measure will reduce the influence of money in politics by limiting contributions to PACs that are independent expenditure-only organizations, such a policy is both unconstitutional and counterproductive.

A question akin to the one Maine voters will answer in November was at the heart of the landmark SpeechNow.org v. Federal Election Commission case. There, the court wrestled with the issue of whether the government can limit contributions to groups that engage solely in independent political advocacy.

The U.S. Court of Appeals for the D.C. Circuit answered with a resounding and unanimous “no.” In all, at least 30 federal appellate judges have ruled on the same question in many cases, and all have said “no.”

As the president of the Institute for Free Speech and a plaintiff in that case, I have a unique perspective on this issue. By attempting to limit contributions to independent expenditure-only organizations, the proposed Maine measure directly and clearly contradicts our rights as Americans under the First Amendment. It infringes on our rights to organize into groups and express our opinions on a matter of the utmost public concern – the question of who will run the government.

The Supreme Court has consistently held that independent political speech deserves the highest level of constitutional protection, and the proposal in Question 1 quite obviously fails under that analysis. The measure is also simply a bad idea.

If the government can limit what we spend on our rights in this manner, what else could it do? You are free to publish a newspaper and endorse candidates, but you can’t take revenue of more than $5,000 from any advertiser. Or you can establish a church, but no one can support it with more than $5,000.

If you and I agree on a cause promoted by a candidate, and you can only afford to contribute $50, but I can contribute $10,000, why should the government prohibit us from pooling our funds to speak the same message? What about a celebrity who charges $50,000 to endorse a product? The measure would allow a celebrity to make an in-person candidate endorsement, even though it is made in coordination with the candidate. But five people who are unknown can’t pool their money and spend $50,000 to speak independently about the same candidate?

The measure would obviously lead to less speech and less information for voters. And that would give an advantage to incumbent politicians, who are better known. Why would we want to do that?

The reality is that, since the courts blessed independent expenditure groups, campaign spending has gone up. It’s an important reason why election campaigns are more competitive than they’ve been in decades. Voter turnout is up, too.

If the measure passes, it will also waste precious Maine tax funds. The state will pay lawyers to defend this indefensible measure in court.

This ballot measure threatens your free speech rights and good government. Smart Maine voters will vote to reject Question 1 and protect their constitutional rights to political speech and assembly.