S8E6: Oral Arguments

This is Larry Lessig, and this is the 6th episode of season 8 of the podcast Another Way. You're not going to get a chance to see my beautiful face in this episode because I'm recording just after back from the oral argument in the First Circuit. On July 29th, 2026. I've seen a lot of oral arguments in my 150-year career. I have never seen a more effective oral argument than the one delivered by Neil Katyal today in the First Circuit. Now, of course, Neil was helped by the fact that he has the truth on his side. The law is with us in this case. And he was also helped by the fact that the bench was extremely well prepared. They had obviously read deeply and carefully and understood the issues better than 99% of the lawyers I have debated this question with. So it's absolutely clear they see what the issues are and how to decide them. Rightly, and the only question is whether they'll have the courage to be the first circuit after 8 before them to correctly recognize that Citizens United does not create super PACs, that Citizens United, which was a case about the relationship between a PAC and a candidate can't tell us anything about the relationship between a donor and a candidate, which means even if the PAC is independent of the candidate, that doesn't mean that the donor is independent of the candidate. And the kind of corruption that super PACs have enabled is a corruption between the donors and the candidates, the donors to the super PACs who are donating because they recognize the potential benefit they will get from the candidate. Precisely the kind of corruption that the Supreme Court has permitted under Buckley v. Valeo, states and the people to regulate. So whereas in the district court, in this case, for the first time, the court acknowledged that contributions to independent political action committees do create the risk of quid pro quo corruption, but nonetheless, Lawrence Lessig said there's nothing that could be done about it. It was clear in this court that they understood the fact that these contributions create the risk of corruption means there's something that could be done about it. We'll see. This has been a long fight, a long, long fight. I've been in this fight literally for 20 years. This predates the birth of Super PACs, but the fight to end the corruption of money in politics was something I took took up at the end of 2006, or at least promised at the end of 2006. And so it would be an enormous victory if we could finally win this critical battle and finally end this, the most corrupting dimension of an extremely corrupted system. What follows is the oral argument released today by the First Circuit Court of Appeals. I can't express my gratitude to my friend, the great lawyer Neil, the tariff slayer, Katyal, who I'm confident, will be known as Neil the Super PAC Slayer Katyal, and extremely grateful to all the people who have helped get us to this point. Let us pray that this court has the courage to do what they see is the right thing to do. There is hope. This is Larry Lessig. Thanks for listening. I hope you enjoy this oral argument as much as I did.

The next matter, number 25-1705, Dinner Table Action at All versus William J. Snyder at All, and number 25-1706, Dinner Table Action at All versus Equal Citizens at All. At this time, would counsel for the appellants Equal Citizens please introduce himself on the record to begin?

Thank you, Your Honor, and may it please the court, Neil Katyal for intervenors, and I'd like to reserve 2 minutes for rebuttal.

You may.

This case presents a single question. When the people of Maine decided by the largest vote in the state's 206-year history that unlimited super PAC contributions were corrupting their elections, did the First Amendment leave them powerless? It did not. Maine's law regulates contributions. The district court made a huge mistake applying expenditure law not contributions law. And that mistake has two profound implications. First, it overstates the First Amendment interest. Buckley v. Valeo held that contribution limits just restrict funding someone else's speech, and they have attenuated First Amendment interests at most. Expenditure limits—

Buckley is written— I just want to make sure I understand Buckley on this point. So Buckley is written in the 1970s, and when you read it, the idea is sort of a rich person or not a rich person who has meant the contribution limit goes out and sort of buys their own speech, makes their own pamphlet, makes their own radio ad, whatever. In this situation, the— in Citizens United, it's about that too. Like, they made the movie, right? In here, the idea is not that they made the movie or made the radio ad. They are giving the money to a separate entity that will make the movie or the radio ad.

That's exactly right, Your Honor, and pages 18 to 20 of Buckley say— there's another part of Buckley which is about the contribution limits, and there the court says those are absolutely upheld because that's just funding someone else's speech. An independent expenditure contract, by contrast, like the examples you're showing, are hard caps on speech, and Buckley says that's the fundamental difference.

Here, I'm giving the money directly to Senator Jones or to this super PAC over here, no matter what, all I'm doing is symbolically saying something. I'm actually not doing any speech thing myself.

You got it exactly right. And that's the mistake that SpeechNow made in applying a different body of law, expenditure law, in which there's a wall between the, between the super PAC and the, and, and the campaign. Here, there is no equivalent wall on the donation side. There are basically three parties here. There's the donor. There's the candidate, and then there's the PAC. And Citizens United said with respect to the last two, there is that wall of independence. We don't disagree with that at all. Indeed, we think Citizens United may be the most misunderstood decision in our history because it's been read to be something it doesn't say.

As Mr. Katyal, what that is saying is at the end of the day, the ad that's produced, the ultimate— let's just use an ad— the ad that's produced at the end by the super PAC, that is walled off. That is— and so no, there's no appearance of of corruption here, but what we're talking about is something, a precursor to that, which is, does Senator X like to have the super PAC that everyone is aware likes him or her to be well-funded? Below that, what's done with the money, Senator X or Y can't control. There's no corruption there, but that he or she would like it to be well-funded, of course they would. That we should be worried about corruption because they might do something to get it well-funded. And is that your argument?

100% correct. And I'd add to that in in response to my friend's invocation of Judge Kavanaugh's question at oral argument in the D.C. Circuit, which he said, as you did, "Well, can't you allow direct spending by someone? Isn't that permissible?" We think absolutely that is. That's a feature, not a bug, because we're talking about a contribution limit, not an individual expenditure limit. Maine knew that individuals could express themselves by directly funding their own speech, and that the First Amendment gives them that right, but this is not about that. This is about funding someone else's speech.

You chose, instead of buying your own ad, to give to a super PAC of which you are not a member. You are not anything but a person who gave it money.

Correct, exactly. And so, you know, both SpeechNow, which was decided a mere 3 months after Citizens United, and the many other cases my friend cites from other circuits— and we concede that a lot of other circuits have reached the opposite conclusion— all of them did so a flash after the Citizens United decision, when there was no history of Super PAC contributions.

I follow your argument. It has some parts that, you know, resonate. The part— here's the part that bothers me. It's when the Supreme Court in Buckley, and it's repeated in Citizens United, is saying, why should you not worry about this? It's because they say independent expenditures— candidates don't really want those. They're going to be counterproductive to their interests. And so Don't worry, nobody's going to do this. Nobody's going to take a bribe to have money sent over to someone who's going to do independent expenditures because that may work against their interests. And it does say that. What is your response to that?

Yeah, that is just empirically belied by the record going from $86 million at the time of speech now to $6.9 billion now. The people of Maine decided differently.

They said that as a factual assertion in Buckley and not a legal assertion that we have to give deference to?

I think it is a factual determination on those facts. And here the people of Maine decided a very, very different thing. They decided to have these because of the appearance of corruption. The appearance of corruption alone is an independent rationale. The people acted because of that. Shrink Missouri, the Supreme Court decision says you look to that referendum in deciding whether there's appearance of corruption. And Buckley v. Valeo says that is an independent state interest.

So let's say you were drafting our opinion and you were wrestling with how to explain, you know, we've got to explain that it's like roughly 2 or 3 paragraphs in Buckley that sort of say, look, the sort of what that super PAC or what that independent expenditure is doing is just not, it doesn't matter to the candidate. In fact, it may be very negative to the candidate. How do we write the opinion acknowledging that and saying, well, we're in a new world.

Buckley adopted a broader prophylactic rule which said that the government can prohibit on the basis of the appearance of corruption. Here there is that record with respect to Maine about the appearance of corruption. And what is that?

What is that?

Yeah, people voted for it.

The people voted for it as part of it. But also the other half of this is the vignette experiment, the vignette studies done by Robertson, which are kind of the gold standard in showing that because these contributions contributions of over $5,000 are flowing. That's creating a massive appearance of corruption. This is a very robust finding that is before the district court.

What is the study doing?

The study is what's called a randomized vignette experiment, and what it does is it takes thousands of people and it gives them— there's control groups and it varies just one thing, which is the amount of the disclosure, excuse me, the amount of the contribution limit. And what Robertson found is over $5,000, a massive appearance in the increase of corruption.

That's better evidence than the— what troubled me about just Maine voted for it at 75%, one could say the people of Maine want less money in politics. This is one way to do it. That's what they want, and that they can't really do.

Your Honor, both Shrink Missouri and your own decision in Daggett both say you can look to that referendum in deciding that. And here, of course, there's much more than that. There are all these real-world examples of corruption that the briefs talk about, and Maine is well within its interests under the Buckley v. Valeo decision in saying that. Remember, Buckley said you can have contribution limits based on 3 examples from the 19th '72 election. This is way more than 3. I mean, this is a massive dispiriting of the, of the main people in their voting process. In the declarations before this court from Senator Bennett and others explain exactly that, that this is basically drowning out and undermining the ability of people to participate on local issues. The other thing I would just say, the other thing I was just saying before a moment ago is it's a feature, not a bug, that there's individual spending that occurs. And so when the other circuits in following SpeechNow analyze this. They really thought about it as the independent expenditure limit. There's nothing in Buckley v. Valeo about the preference of candidates against Super PAC fundings or anything like that to say take any of that back.

The logic of speech now is the simple logic that if the money downstream, if the actual ad is not done with coordination, then there's nothing else to worry about because that speaker down the road got to make the decision. And your point, just I think we've gone over this, I want to make sure I get it. Your point is no, all the candidate needs to know is generally speaking, you know, People for a Better Tomorrow are the super PAC that generally like me and they're going to work generally for my interest. And so what I'm going to do is make sure they are flush. And if they are flush, I won't get to control as if it were my own campaign, the nitty gritty of the ad, but I'll I know it's going to be good and that's good enough. And that should worry us about what the candidate would do to get that to happen.

Exactly. You can have all the laws banning coordination between the PAC and the candidate in the world. They don't stop the pre-contribution problem. And if you don't rule here for us, this may be the last chance to tee this up to the Supreme Court because of all these circuits that have gone the other way.

And there are limits. This is just briefly on the federal side. In your brief, the candidate can only solicit for the super PAC up to the contribution limit? Is that— how does that work?

Yes. So there are solicitation limits. They obviously apply only to the candidate, not to the donor. Our problem, and this is detailed in the Alschuler brief, is it's the donor who says to the candidate, hey, I'm going to give $1 million to your candidate-aligned super PAC, which, by the way, many of them are single-candidate super PACs now. That's a paid joint appendix page 65 to 70. So it's unlike the Buckley language you're referring to. And all the walls in the world don't prevent that happening. And that's the fundamental problem.

Bridge guy calls up senator and says, hey, I have a million bucks. I'd like to see you reelected. And I am concerned about this bridge that I need to be built in my state. And I will get— do you think People for the Better Tomorrow is the place to put it? Is that the scenario we're talking about?

Yes, exactly. And, you know, it's common ground. Everyone agrees that Maine can ban a request like that for $10,000 directly to the candidate. The weird thing about the district court's decision is they say, look, for the first time, they're recognizing there's an appearance of corruption or reality of corruption. They're saying you can't regulate the $10 million that that candidate asks or tacitly gets as long as it's given to their candidate-aligned super PAC. And that is what Maine voters were reacting to here, that real risk of corruption that occurs and the appearance assurance of corruption.

So can you just give me a real, real-world example? It doesn't have to be true to life, just a hypothetical that sets out the corrupt coordination between a donor and a candidate.

Yeah, it's just as simple as saying, you know, I'm going to give you— I'm going to give your candidate, whatever your preferred super PAC is, $1 million. I'm going to give that super PAC $1 million. Please remember me when it comes to regulating my industry. You know, nothing more than that. And the Al Schuller brief goes through this, and this is actually really happening, and there's examples.

I mean, I guess it's an appearance thing. That's not quid pro quo.

Exactly.

That's not quid pro quo. That didn't— the bribe didn't happen there. Is that what we mean when we say that it's the appearance of quid pro quo? I mean, I've always had trouble understanding this, what the Supreme Court actually means by this. So that That was bad, I guess, what you just said, but it would not be a bribe. But what? We're worried.

We're worried that basically there's something going on behind closed doors. Some of it will be tacit, some of it will be expressed, and some of it will be just very much understood. And what Buckley says at pages 29 and 30 of its opinion is contribution limits exist to prevent that prophylactically because solicitation rules Bribery rules, disclosure rules, none of those can really fully get at that. And so government can act in a more prophylactic way to combat that set of problems.

Does the Supreme Court in any way better define what its notion of appearance of corruption is? Because I'm sort of having the same issue that my colleague is having. What does that mean? When does it get to the point that it's a— we should consider consider it a legitimate appearance of corruption.

I think Buckley at pages 18 to 20 does try and define it. And then the Supreme Court in Schrink, Missouri, as well as this court in Daggett, further said when there is a public referendum that shows an appearance of— that sees an appearance of corruption, that is overwhelmingly good evidence. Here it's more than that. You also have this Robertson vignette randomized experiment, which is very, very powerful evidence. So I agree there will be edge cases, Judge Thompson. This is just miles away. From the Edge case. This is one in which you have every indicia, both the indicia that this court has looked to in terms of referenda, but also the randomized vignette studies that say this. This is a much stronger appearance of corruption case than Buckley itself, which only could look to found 3 examples after the 1972 election at page 20, and they said that was enough on that factual record.

Just before you sit down, because it's about time, I think, I just want to make sure I understand this. I think the worst thing for your argument is the line from Buckley and Citizens United that say independent expenditures may well provide little assistance to the candidate's campaign and indeed may be counterproductive. The absence of prearrangement and coordination of an expenditure with the candidate not only undermines the value of the expenditure, but also alleviates the danger that it will be given for a quid pro quo improper commitment from the candidate. And so that I can read that to mean, don't worry here. There's no candidate's going to do this. And I took your response to be that's just empirically false.

It's empirically false, but also just there's a logical error because that is about— that's about an independent expenditure where there's a wall between the PAC and the candidate. Our problem is we're talking about the pre-donation stage at the front end. At that point, it can be a thing of value.

I get that, but the gist of that is the appearance won't happen because a candidate at that pre-stage won't want this. They won't want these super PACs to be flush with money because they may go off and make crazy ads that don't help them. That's the premise of that.

And we're saying legally the people of Maine rejected that premise here in the state. They saw massive amounts of money coming in and they reacted. I don't think they were reacting. And I think it'd be a very unfair thing for this court to go down the road of saying, well, the people were wrong in that assessment.

Your point as an inferior court of this court, that was not some legal or forever determination. These are thoughts of the court based on what they understood the world to be in 1976 or 2010?

I think those are empirical thoughts with respect to independent expenditures themselves not being corrupting. Here, what the people of Maine said is the contributions are and can be quid pro quos and create the appearance. That's why they're passing the referendum. They're not passing it doing it because they're thinking that there's, uh, that they're not just out of a gratuitous nature, they're doing it for a reason. Indeed, there's a massive record given to the people of Maine, and some of that's at the joint appendix with all of these, uh, all these studies showing this money's flowing and corrupting the politics in Maine.

I'm back to my earlier questions because I'm still thinking about how you would draft this your way. And, and I understand that was an empirical statement in Buckley. We've got all this evidence here. We've got the Maine voters. We've got these empirical studies, that sort of data-driven information that shows Buckley's wrong. Are there circuit cases out there or other Supreme Court cases that have sort of done this exactly, this type of analysis, and dismissed the type of statements that Buckley has as simply empirically wrong?

Absolutely, Your Honor. The Supreme Court in Free Speech Coalition v. Paxton just a couple of years ago reviewed the internet speech precedents that were— and it said it, quote, relied on decades of old factual findings, and it could not have conceived of massive changes to internet availability. Here you've got exactly that. At the time of speech, now $86 million coming into super PACs, now $6.9 billion. There was a race in Maine for the district district attorney in which the candidates spent $54,000 and $22,000 respectively. One super PAC funded by one entity spent $384,000 on that campaign. That's, you know, in the record, and there's example after example of that. And so, yes, I don't think you're bound by something that the Supreme Court said in 1976 based on a very different campaign record than now. SpeechNow changed the game. Citizens United is reinforced I don't think it quite said that. No, I don't think that. So maybe in 1976, the Supreme Court said this, but certainly now, when you have in the reaction to the SpeechNow decision, a massive change in campaign finance. People now, if they want to buy influence, they don't make the direct donations because all they have to do is donate it to this candidate-aligned super PAC, and there are no limits. If they do it on an individual direct basis, it's a $7,000 limit or whatever, you know, as the record says. Says, but they can give $7 million to the single-issue super PAC. And I can't understand how anyone would overread Buckley, that language in Buckley, to say that's something candidates wouldn't prefer. I mean, you know, most of these are single-issue super PACs now. And, you know, my friend on the other side says, well, maybe that makes this overly broad or something like that because you're dealing with multi-member and not just single-issue super PACs. That's something that the Supreme Court's already rejected in the California Medical Association decision, saying the government can act more prophylactically. And of course, This is a facial challenge. As long as it is constitutional with respect to the single-issue PAC, that alone is enough. There's a massive number of single-issue PACs. That's a big change since that language at Buckley v. Blair.

When you say single issue, that can even be single candidate.

Absolutely. The joint appendix at pages 65 to 70 recognizes exactly that. I want to point out one other thing. My friend filed a 28-J letter about the new Supreme Court decision in NRSC.

I was just going to ask you. About that.

Yeah, so I think that decision very much proves our point because it examined party committees where there were four layers of prophylaxis. One is the base limits on contributions to campaigns and candidates. The second is earmarking rules. The third is disclosure requirements, and the fourth is the political party coordinated expenditure limits. And the court's holding is just simply that, that last one, the coordinated limits, need not be given because of the other three prophylaxis. But the court never once questioned the legality of the $44,000 contribution limit to parties, national parties, or the $10,000 one with respect to state political parties. And that is this case. What the people of Maine did is they didn't go and say, we're going to cap independent expenditures. That would violate this new Supreme Court decision every day of the week. They said, we're going to regulate on the contribution side.

This has no more aggregate aggregate, you would say, I guess, or tell me if I'm right about this, no more aggregate effect on the amount of speech than contribution limits to candidates. So super PACs can raise and spend as much as they want, but they have to go to more people to get it than they can now. And that is exactly what they said in Buckley about candidates. And so that's the same.

Exactly.

And the interest is the same, which is the symbolic interest of giving. Now, that's something I guess I do have a slight question on. So I fully get that for the candidate. So if I give the candidate some money, he can or she can use it to make an ad, buy donuts for the staff, whatever. If I give it to a super PAC, it's going to be— by definition, it's going to be spent on speech in favor of whatever the issue or candidate is. So is there— is it exactly the same in the interference with the giver's First Amendment interests, or is there some difference between them?

I do think so. That is, it's still a con— you know, that it is a contribution funding someone else's speech. I think that's the most critical language there, and my friend tries to collapse that distinction by saying, well, it's an independent donation or something like that. We tried that rubric, or the plaintiffs tried that rubric, in California Medical Association. It got a whopping 1 vote from Justice Blackmun. The other justices said no, there's a diehard distinction between contribution limits, which is just funding someone else's speech. First Amendment interests are much more attenuated there than there is in the independent expenditure thing, which is a hard cap on speech.

To you, that's what makes the analysis by all the circuits that have dealt with this, starting with SpeechNow, wrong. They're not focusing on the contribution of a person to an entity that's going to do speech. They're talking about the speech itself downstream.

Exactly. And my friend on the other side in his 20-HA letter says, well, the NRSC decision rejects that because of a citation to SpeechNow, which is just a citation to the record, to the rule, to the laws at the time. And footnote 6 of the NRSC decision rejects exactly what he's saying. It says, hey, we are only talking about political parties where there's the highest, strongest First Amendment interest. They say we're not dealing with limits to outside groups. And so footnote 6 removes any kind of inference that maybe this new decision changes the landscape and blesses SpeechNow's holding. And again, if you don't do this here, given that wall of circuits that he's pointed to that have come out the other way, it may be the last chance for the Supreme Court to have this teed up. And we think it should be teed up for the reasons we're saying and also the originalist evidence that that we provided in our brief to the court.

Thank you.

Thank you. Sorry.

Yes, please.

On the originalist, not the first one, but the second one, the dependence idea. How does that align with the Supreme Court saying leveling the playing field's no good, anti-distortion? These ideas seem related to that and have been rejected.

Yeah. So we're not arguing anything about trying to level the playing field or any— we're not making any of those arguments in justification of this law. Dependence corruption is a different rationale, and it has been, to be sure, questioned by the Supreme Court in the new NRSC decision at page 10. So we do think you're bound by that language. We don't think you could say dependence corruption is by itself an independent rationale under current Supreme Court precedent. We think it's very much like the Heller decision in the Second Amendment context, in which you had decisions from the Supreme Court that foreclosed an argument, but justices were asking for briefing on the originalist case. Here, Justice Thomas is asking for briefing on the original understanding of the First Amendment. We think his colleagues also have said similar things, and dependence corruption really does square with the founders' view, the original view of the First Amendment. And so we think you should get into it, but we absolutely acknowledge that alone couldn't be a reason for you to rule for us here.

Thank you.

Thank you.

Thank you.

Thank you.

Counsel, at this time, would counsel for the other appellant group, State of Maine, please introduce himself on the record to begin?

Good morning, Your Honors. Jonathan Bolton, Assistant Attorney General Counsel for the Attorney General and for the members of the Maine Commission on Governmental Ethics and Election Practices. I think Mr. Katyal largely covered the ground in terms of the points that I wanted to make. I just, I think I wanted to emphasize how different this case this court versus the cases that were presented to the other circuits that I know have gone the other way, in that almost all of those cases were decided shortly after the SpeechNow case came down.

The newest one, do you know?

There is, I think the Alaska State Court one is the newest one, and that was in the early 2020s, I believe. And there was one from 2018, and all the rest of them were 2008 to 2013.

'16.

And those cases, you know, I think we call this sort of a failure of imagination in our brief, but they didn't have the opportunity to look at this new system that has evolved, that you are now presented with in the record here in 2026. And I think the two features of that system that they didn't have are the sheer amount of money that is now flowing through super PACs, which is in the record at the federal level, the Lawrence Lessig declaration talks about that. And also, the Wayne affidavit talks about how this is a trend now at the state level as well, with contributions and independent expenditures largely sort of taking the place of traditional expenditures for campaigns. So we're in a different world, and I think that justifies taking a new look at this.

It's a different world we're in because, I mean, amount of money I think the Supreme Court has pretty clearly said, don't worry about that. More money is generally good for speech in politics. The part that I guess I've been thinking about is, you know, Buckley is very much thinking about bright line rules. People aren't going to coordinate. And so therefore, there's nothing to see here. There's nothing to worry about here. And I think the change that's more meaningful to me than the amount of money might be that, Well, formal coordination, which given technology in the 1970s, really would be required to make it work. Now, you don't need to coordinate, you need to align, and you never have to speak or communicate at all to align. What is your—

I think that's absolutely correct, Your Honor. And you think about why we have the contribution limits and the candidate contribution limits in the first place. There doesn't have to be, for that to be potentially corrupting, which Buckley said that they are potentially corrupting. There doesn't have to be a prearrangement or an agreement or any kind of communication at all between the candidate and the donor. The contribution itself is enough to create the potential appearance and reality of quid pro quo corruption in some cases. That is the system that has now evolved with the Super PAC system.

That's because— just to lay it out, make sure we're all speaking the same way— so the idea of Buckley as it pertained to the candidate is. Giving $1 million to the candidate, whether we had some bad conversation or not, the public thinks no one gives $1 million to get a guy elected unless there's a good, meaning nefarious, reason for it. That's the idea.

I think, yes, that's right.

And you map that onto this in the modern world and you say, well, now there are these entities that in the end they have to write their own ads and the candidate can't talk to them about it, but nevertheless, the people, all the actors know they support the candidate, and so when $1 million goes to that entity, it looks in the modern world the way, just about the same that it looked when we gave it to the candidate when we were talking about it in the 1970s.

That's exactly right, Your Honor. It, it, it is a thing of value to the candidate that, for the candidate to receive these massive donations to a super PAC that they know is going to be running ads either to support them or to oppose their opponent. And that's sort of the new world we live in. None of these other courts have had occasion to consider it, and the record here allows this court to consider it for the first time, I think, among the circuits. The other thing that this—

There's no distinction between super PACs that align with candidates or ones that align with the interests of a candidate. And you're saying that, I mean, so it doesn't doesn't draw that distinction. So a super PAC could be very, let's say, pro-environment, and it may in fact align with the candidate's view on environmental protection, but that doesn't have the appearance of corruption. Or would you say that it would? How do you differentiate between that kind of PAC scenario and one where it was clearly one designed to to support a candidate for maybe perceived corrupt reasons, quid pro quo.

Yeah, Your Honor, I think there is a range in terms of the different kinds of PACs. I mean, they all, in order to qualify for this, to be covered under this rule, they have to be making independent expenditures, which means they have to be expressly advocating for specific candidates. It can be a group of candidates, and it can be based on ideology or policy views versus as other things, but it has to be express advocacy. And I think, you know, some of the examples in the record show—

But that express advocacy happens down the road and can't be coordinated.

Correct.

So if I am person with a lot of money and I give it to this super PAC that likes the environment, and we understand that what they do with that isn't going to be coordinated, it seems less likely Um, that I think that the problem is less acute than we're dealing with it with a PAC, a super PAC that is already pre sort of aligned with the candidate and that's known. So we have a facial challenge by them, by the, by the other right to, to, to this law. I mean, is that, I think there's a harder problem in what Judge Thompson's positing than for the super PAC that is sort of officially sort publicly aligned with the candidate.

Yeah, well, I think, Your Honor, there is a spectrum, and this is a facial challenge, which means that they, you know, they have to make a showing that this act is largely unconstitutional as applied generally to these things.

There's an overbreath potential, right?

I don't think so, Your Honor, because I think that there are examples in the record of multi-candidate PACs that have been caught up in these corruption scandals. I think that's the Householder case involved a multi-candidate PAC. That was not a a single candidate PAC.

Issue PACs that then, as it gets closer to the election, they're flush with cash and they start to think, this guy's— I like, we like what he's saying about the environment, so we're gonna throw some ads to him. That donation of a lot of money doesn't really feel like it's getting at the—

Well, Your Honor, I think, yeah, I think a couple things. I mean, we are under an intermediate level of scrutiny here, you know, we're under exact, closely drawn scrutiny, not strict scrutiny, so that the fit doesn't have to be perfect between the law and the things that it regulates. And I think Buckley also says that, you know, this is a prophylactic regulation, right? Buckley acknowledges that contribution limits are going to catch up some perfectly non-corrupt transactions along with the corrupt ones. But, you know, it's still important to have them because of the appearance of corruption.

What does the Super PAC universe look like? I mean, I don't I don't have a good sense of that. You have some that are like really publicly aligned with the candidate.

Correct.

You have some that are probably aligned with political parties.

Correct.

You have some that are aligned with particular issues.

Yes. Yeah, it's a mix. That's in the record in the appendix. You can see, you know, the mix of PACs that have made large expenditures. It's trending towards— and this is in the Brett Seth Declaration— it's trending towards more and more single-candidate PACs. PACs, and even those that aren't single candidate, many of them support, you know, a very small number of candidates that can still be like a very, a very potent vector for corruption. Unless there's any further questions, we'll rest on our briefs.

Thank you.

Thank you, counsel.

At this time, would counsel for the Appellees please introduce himself on the record to begin? Good afternoon, Charles Miller, Institute for Free Speech, on behalf of Appellees. So the American people have a First Amendment right to assemble and to associate, to engage in political speech, and particularly election-related speech, uh, free of infringement from any laws. That is what we're here talking about today. That's what independent expenditures are. It's the association of individuals to get together to speak.

But as someone who gives to the thing that then goes ahead and makes the speech, are they in the association, so to speak? They are just a giver of money to something else.

They are associating to speak and they're associating through line there.

How do we know that framing versus the framing? It's just like when I give the money to my, my favorite candidate, I'm not part of his campaign. I'm a giver. What makes it different than I'm a giver to that super PAC over there?

So Buckley, uh, spoke about limiting only 3 types of contributions. Contributions to candidates, contributions to parties, and contributions to PACs. The reason that the limit of those three is one, a contribution to candidates, to the candidate directly, and contributions to the other two can be indirect contributions. You can give money to the PAC that gives money to the candidate. And at that point in time—

Prior to history, did these things exist in the form they exist now in the '70s?

Yes, those existed then in that form. And it was even at that point in time, candidates could use their campaign contributions for personal expenses. They use them for that all the time.

These were super PACs that were organized and formed.

Oh, I'm sorry. When you said these entities, I thought you meant—

So I understand the entities you meant, and I understand why Buckley is— what I'm trying to understand is, is there a new world of entities that exists post-Buckley so that Buckley didn't talk about them is because Buckley didn't think of them because they did not exist.

I'm not exactly sure the form of all independent expenditures that took at the time and who were making them. Making them. But additionally, at that point in time, you know, the money that the candidates received, be it either directly or through those intermediaries, could be used for retirement accounts, you know, that they would retire— that's what they would rely upon when they retire, are these funds. And so that was the concern and why the concern was limited to those entities. Anything beyond that is outside of money that can get to a candidate.

And partly that bags of cash were being given to help elections, and the idea was that that would help the candidate win. And so we should worry because people might give up official acts to get money so they can win and keep their jobs and their power. I mean, that seems to— that would seem to be part of it, at least.

The concern at the time was money getting in the hands of the candidate for the candidate to use as they wish in shows.

But part of it's to win, right?

Well, that's the money getting to the candidate and that they will use to win, or they could just use it for personal expenses. You know, and that's really concerning about getting money to the candidate. And, you know, as recently as less than a month ago with the National Republican Senatorial Committee, the Supreme Court emphasized these issues. And before I sort of talk about those issues, you know, in that case, they talked about this case and the issue we're dealing with now. And the opinion there said donors can and do send their funds to super PACs and other outside groups that have a First Amendment right to receive even spend unlimited money. So they say there that super PACs have an unlimited right to do so.

They do. And they do. They absolutely do. And the question this case raises is, can they do that by going to one guy, or do they have to do that by going to 1,000 guys? And so that seems to be a secondary— that quote, which I appreciate and I think is correct, doesn't answer that question.

Well, so it says received, but also the, the one guy issue. That one guy can go and spend that money on his own. Um, you know, so, um, you can't coordinate.

And so, well, why would you need to?

Well, actually, um, neither can the super PAC. The super PAC can't coordinate.

No, but I, as the donor to the super PAC, can.

With, with who?

The candidate.

No, you cannot. No, no, no. So, uh, so the laws that are out there, uh, if a, if a donor, uh, if someone who's giving money to a super PAC coordinates with a candidate, that donation is limited to whatever the, the limit is to give a donation to candidate. So if the limit is $5,000, then that donor, if there's a coordination, cannot give more than $5,000.

Pretty sure this can happen. The candidate or the officeholder can go to the super PAC's event and make a big speech about why this super PAC's a good thing. And then, you know, then you're saying that unlimited amounts of money can be given to the super PAC. PAC, and then— and the speech is by the super PAC. I mean, I think your friends are drawing that distinction, not by the person who gave the money. And so the, the giving of the money, the argument would go, is to get favor, curry, from the person who came to give the speech.

You—

now I'm going to give a lot of money to the entity that he's clearly wanting me to give it to, and that creates concern about our Yeah.

And so, well, one, you know, if you're worried about that speech being given by a candidate, then prohibit the candidate from, from giving a speech at a super PAC event. I mean, that's where you kind of address that issue. But the, but the concern that you're kind of raising there is, is, well, hey, this candidate would like money to be given to this PAC and this person's given the money. You know what, what the Supreme Court has referred to that as is Well, again, from National Republican Senatorial Committee, quote, the government's desire to prevent or reduce influence, ingratiation, gratitude, access, or the like for those who spend or support or contribute is not a constitutionally permissible objective. So, you know, it's not a reason to just say there's going to be ingratiation, there's going to be access. Boy, that's a lot of money.

Quid pro quo corruption. So the premise would have to be along the same lines as Buckley, which is these things, some super PACs at least exist to support my candidacy. And no, I cannot get myself involved downstream in exactly how they're gonna spend the money. But the idea would be clearly I want it to do well and have a lot of money. And so the public will think that people who are giving it a lot of money are doing it because they're gonna get things from me because my interest is to have that thing be flush with cash. Like it was to be— to my campaign to be flush with cash. Like, where's the difference?

So, Your Honor, I've got two answers for you there. Uh, first of all, uh, well, I'm going to say, uh, in detail what the explanation is, but, but first, you know, I think that the way the Supreme Court has structured these laws and everything, you're sort of prohibited from holding that. So to the extent that you think that that is accurate and there's been a You know, I believe the proper thing to do would be to simply pen a concurrence or something here.

The holding is what? The thing, the part I'm reading about the Supreme Court has said sort of independent expenders may not work in the candidate's interest, so they really won't want them to be flush with cash?

Yeah, there's that. And then just Citizens United, where it says, you know, that the line stops when money is not going to the candidate. And Buckley, which limited expenditure, which limited the contributions only to those three entities and said anything independent and beyond that is beyond fair game. So I think all of these cases have said that. And, you know, NSRC has just said it most directly. But with respect to the exact question, I'm sorry, I forgot what it was now.

The question is just why basically wouldn't the same issues that animated our worry about campaign means, you know, a candidate wants his campaign to have as much cash as possible.

Okay, all right, so to answer that, the Supreme Court again, and our SC, sort of defined exactly what their concern is about quid pro quo corruption. It's a very narrow one. On page 13—

Can you respond to, you know, your opponent's argument that there's somewhat compelling empirical evidence that it's possible for the super PAC donations to result in either quid pro corruption or the appearance of corruption, and that that's sort of a way to view the early, our earlier Supreme Court cases as wrong on that piece.

So first, when the Supreme Court says quid pro corruption, what it means, and this is from page 13 of that opinion, is quid quid pro corruption is a donor's contribution to a candidate, uh, in exchange for official action. So they've got a very, very narrow definition, which is to the candidate.

The Supreme Court has said quid pro quo corruption or appearance. It's the appearance that Supreme Court has recognized as a legitimate interest. And so if you can't prove corruption, how do you get at appearance?

So the Supreme Court wants the appearance of the money going to the candidate. And in a super PAC scenario, the money never gets to a candidate because it's separate.

So, and here, you know, it's the perceived coordination. And even though coordination is prohibited, so it's— isn't it reasonable to infer that if someone is giving $1 million to a super PAC that is specifically set up for that one candidate, that that is at least the perception of an appearance of corruption.

There is— I think we have to be careful what we— when we say corruption, because corruption means lots of things. Does it look like the person is looking for something in return, an ingratiation? Maybe. But that's not, you know, that's politics. You know, that's what happens when people go out and do these things.

What does it What does appearance mean?

So it has to be appearance of money getting into the candidate's pocket. It has to be money— appearance of money going to a candidate. That's what they say.

When you say pocket, you mean personal use?

That's ultimately where it's supposed to be, what this is going around. But certainly, at least to the candidate—

What's your support for the personal use idea? Because that seems like an important distinction. Because I agree, money sent to a super PAC is not going to end up in the in their pocket, money to a super PAC is going to help them get, keep their, or get the job they want. And so to me, the distinction, that's an important distinction because if it really is personal use, we don't have the problem. But if it is just like retaining my job as an incumbent, it seems to map onto both problems relatively neatly.

Yeah. So again, they, they're concerned about contribution going to a candidate. And when they talk about about this in Citizens United and other cases, they emphasize, and in SpeechNow, they emphasize that it's about money getting to the candidate, money getting, you know, to the candidate. So that's where I make that distinction. And if you look at the Supreme Court's case law on the criminal aspect of political corruption, you see that they're very dialed in on that.

So I guess your answer to the question I asked you about, you know, now there's there's declarations in the record, there's the vignette experiments. It doesn't really matter because nothing is establishing the type of corruption that the Supreme Court was talking about.

Yeah, that's my specific answer to that. So first of all, like with the voters, yeah, I, you know, certainly 70-some percent of the people want less political spending, you know, like they don't want their cell phones ringing all the time. They don't like seeing these ads. Like, and so when you ask somebody to vote, we vote for less of this. Yeah.

Yeah.

Stop the about the noise. That doesn't mean that they perceive actual quid pro quo corruption. And the vignette thing, that's sort of, so that was something that they did for the case. Like, you know, after this was ongoing, they put it together and, you know, with a professor here in town and he proved too much. 35% of respondents said that a $5 contribution is corrupting. And so what that tells you is that they don't— the voters, or excuse me, the people that participate in that responded, they're not thinking about this the way that we're supposed to when you say corruption. I follow that.

I follow that. Yeah. Buckley had some examples, some egregious examples out of the Nixon administration period.

Yeah.

And that was their basis. And there's some examples of some politicians in this area doing equivalent kinds of things. So how do we— how will it ever be shown? The idea being that, you know, this is either happening or it's something to be worried about, that these super PACs are so important to these candidates or officeholders that they will do anything, including bad things, to make sure they are flush with cash. How does that get established? Or is it just irrelevant because that's not going to personally enrich the candidate? If that's your answer, that's your answer.

Well, so first of all, I don't think that these examples really show what they think they mean. So I actually, uh, so they talk about the Householder case. Uh, so I worked for the Ohio Attorney General at the time, and I sued Householder and his people on the civil side while the federal prosecution was going on, you know, and, and stopped, you know, a lot of the expending, spending was going to happen there, got money called back. And that did not involve giving money to a super PAC. They gave money to Householder directly through some entities that he controlled. And then he put some of that money into a super PAC, but the bribe was given directly to him, and then he went and used the money to do other stuff.

So it's pretty clear, like, politicians go and give speeches— we've talked about that already— at these places because they like them, presumably, and want them to do well.

All right, so, so my broader answer to you, um, that kind of goes is that if we think about political spending and donations and donations to super PACs, given, just like in the Maine Central Power case, the vast bulk of that, 95%, right, in that case, because that was a threshold here, 99% of money that's given for super PACs is not, you know, there to be an actual bribe. It's not actual bribe. It's not for corruption, at least, you know, if not more than that. And so we can't silence those speakers.

Especially with candidates. I bet most, most of the money was not bribes. It was given to candidates because people wanted them to win.

Exactly right. So if it's not bribes and this is money just getting there because they want them to win, that's a lot of speech that we're silencing here to try to get to this very narrow thing, which is why the Supreme Court and the First Amendment doesn't allow the silencing of all of this speech, because you're worried about this slight little bit. So the answer to that is silenced more speech than the campaign contributions.

Those candidates were presumably using not all of that money, but a lot of it for speech. And now instead of getting tons of money from a couple people, they were put to the task of getting smaller amounts from more people. And we said, not— that's okay, it's a problem, but it's a problem we're willing to tolerate. Why are we unwilling to tolerate it here? I understand if you're going to make the movie, if you're going to make the movie like in Citizens United, you're the speaker. Speaker, but these are not the speakers, they're the givers. So why is it not the same situation?

The other side went over on their time, so, um, please take your time.

All right.

Thank you, Your Honor. Um, so the distinction is, is that Buckley viewed that as money, uh, going to the candidate and they're like, we can limit that because you still have the ability to speak independently. Well, now they're asking to take away the ability to, to speak independently.

I can speak independently as that giver. I can be Citizens United. I can go make the movie if I want to. That's a different scenario, isn't it?

No, because you're taking away the right to associate. So here people are trying to associate under the First Amendment— associate, assemble, uh, to speak collectively—

and that right's being taken away from them in a symbolic way, the way I could associate with the candidate in a symbolic way.

So the, the donation, the symbolic aspect of that was because they were concerned about, you know, limiting the to the candidate. Here, because there's not that quid pro quo direct concern, there's no reason to have that limit. Um, and again, like, they talk about that in, in an RSC. So also on page 13 there, they say, be— this is because— and they're making the distinction of donor donation to the candidate and the party— this is because the donor gives the money to a political party and not to the candidate. That distinction is significant, um, because, uh, McCutcheon recognizes that when money flows through independent actors to a candidate, as when a donor contributes to a candidate directly, there is less risk of corruption. So there, that's money going to a candidate, and they're like, yeah, it's going, you know, there's $500,000 that somebody can give that gets to the candidate. It goes through these parties first, $500,000. It's okay because it's not direct. They don't really control it. There's an intermediary that breaks it. Here we're talking about money that's completely outside of that. It doesn't get to the candidate ever, ever. And so it's completely independent and it cannot be controlled. So the prophylaxis we were talking about earlier, you know, here, you know, the first prophylaxis is, you know, one, you know, the independent— the limits on the candidate directly. You know, two, there is disclosure of donations to Super PAC expenditures, so that's out there. And there is no ability to coordinate whatsoever. And so, you know, those are the prophylaxis.

Just try to crystallize this in my own mind. What you're saying is what's required for there to be the appearance of quid pro quo corruption that is permissibly to be regulated, it has to be money that ends up in the direct control of the candidate. It is, it is insufficient that the money ends up in the hands of an entity that the candidate really likes. And that's a distinction that is in the law that you're saying is the, is the dispositus. Positive one.

Yes, that's exactly right, because the Supreme Court says anything else is simply influence and access and ingratiation, and no matter how ugly people think that is, it's constitutionally protected.

They recognize the appearance of corruption, and I'm still trying to figure out why you say— how would you regulate that if you're saying that the only basis is actual quid pro quo? That doesn't take into consideration how you regulate an appearance of quid pro quo corruption.

So, Your Honor, my answer to that is, is I believe that the appearance of quid pro quo corruption is regulated through limits, uh, on contributions that can make their way to the candidate. I think that's where the appearance is limited there. And then where the appearance is limited here is that stark line that like, no, it cannot appear to be going to the candidate. The money cannot be— it does not appear to be going to the candidate, uh, because it's separate.

And you're saying the fact that if we use the show up, give a speech, uh, seemingly drum up support for something, that that in and of itself cannot be thought of as appearance?

Uh, appearance of quid pro quo. So no, because, you know, you You have to have that quid pro quo, you know, like, hey, I'm going to give you this money, do this for me. You need that do this for me and the agreement of the candidate. And it looks like there has to be, there has to be some, uh, look of some sort of deal.

That's actual quid pro quo. I'm still trying to figure out what does it look like when they say you can regulate an appearance?

Yeah. So you can, you can stop things from occurring that would look like it would be a quid pro quo. It has to look like that. It can't be something that's also kind of icky looking that we think. It has to actually look like the quid pro quo, you know. And so that's, that's where I— that's, that's my response to that. And as far as the legal standard. Yeah. Yeah. So just a couple more points real quickly. So the legal standard, this is a strict scrutiny case because it's not a contribution donation to a candidate. It's a, you know, a essentially giving money for an independent expenditure is itself an independent expenditure. That's strict scrutiny, has to be separate there. And it's the government's burden to defend the law here. They have to justify the law that it's not disproportionate and must be necessary and narrowly tailored. They fail all of those standards here. Additionally, you know, as they indicate, their concern is about, you know, arguably is about super PACs that support one candidate. Neither of my clients are like that. Most super PACs are not. So, you know, although we don't think that would be valid either, if they really want to go and target those things, they wouldn't need a much more specific law.

All right.

Thank you for your time.

Thank you.

Thank you, counsel.

At this time, would counsel for appellants Equal Citizens please reintroduce himself on the record?

Neil Kachiel. I'd like to make 4 points. First, I took a look at the language from Buckley that you were referring to, Your Honor. It is a very hedge prediction, and predictions, of course, aren't binding on the court. The language is independent expenditures on like contributions may well provide little assistance to the candidate's campaign and indeed may prove counterproductive. The Supreme Court, both in Free Speech Coalition v. Paxton and also in Central Virginia v. Katz, said, quote, careful study and reflection revealed erroneous assumptions, so the court was not bound to follow dicta in a prior case. Which the point now at issue was not fully debated. So that's how we think you should read your opinion— write your opinion. SpeechNow changed the world. Funding went from $86 million to $6.9 billion. And as Judge Ephraim said to my colleague on the other side, that didn't really exist at the time of Buckley. So the predictive judgment there was wrong. And by the way, the federal government also thought it was wrong. They didn't appeal because they said this isn't going to change change anything. Rather, it turned out SpeechNow changed the world. That's why the Maine voters came up with the remedy they did. Judge.

Corruption, quid pro corruption, as referred to in all these cases, means money directly that the candidate can touch, as opposed to money the candidate would like to see go some other place.

Flatly wrong. McConnell, footnote 48, says the reverse, that it's all contributions all things of value. The quid is whatever a candidate wants. It could be to the PAC, it could be to a charity, it could be to his daughter. All of those are quids. Here, as you were saying, this money is being given because candidates want to win. That's what you said to my friend on the other side, and exactly right. That's what I think the Supreme Court has recognized in the McConnell case as well as California Medical.

I guess we've established the The law prevents them from soliciting it. And so, of course, if a bag of cash was dropped off at the candidate's headquarters in the old days, that stinks of its own. What here is the equivalent of the bag of cash that was the problem that led to the '70s legislation?

Yeah, so it's the donors who are saying, I'm going to give you a million dollars and that thing of value is, is what the quid is. That's what's corrupting. And even the district court here recognized that could be a valid quid.

That conversation under the law, I mean, it used to be I could just drop off the bag. I mean, what happens that, that it looks bad? Like those of us who understand what's going on.

Yeah.

What goes on that says take a bag of cash? You agree that looks bad. What is the thing that goes on here that looks bad equivalent?

I'm giving that bag of cash to your preferred supervisor.

PAC.

I can tell you that as your location.

Exactly. That's exactly, you know, and that is what the Maine voters reacting to, exactly that type of scenario. And it's happened, of course, in real life. And even in the Householder case, he's just wrong. The Maine brief at page 13 of the reply goes through this. It's count 51 in the indictment.

Senator, you know that I have interests, and I tell you, hey, Senator, I just gave $1 million to your super PAC over there, and that's the end of our conversation. But the appearance of corruption, trying to get at what Judge Thompson's getting at, is everybody thinks that little conversation I had with you in which you just said there and smiled is bad.

Exactly, and that's what California Medical Association said. It was certainly enough to justify that prophylactic regime there, and similarly to, similarly to here. And, you know, look, if this were an independent expenditure cap, we think for reasons you were saying to my a colleague, then that would violate the First Amendment. But here we're talking about funding someone else's speech, and the only effect of this contribution limit is just to have to get them to go out and get more funds. The associational right is preserved entirely. The expressive right is preserved. That's what you said to him in response— that was your first question to my friend on the other side, and I didn't hear an answer to that. The last thing I would just say is that, you know, that my friend said that quid pro quo corruption could only be given to— that there were multi-member committees that were somehow different. Again, this is a facial challenge. They'd have to show it's illegal with respect to all. Judge Thompson, this was your question, and of course the record here shows that there's lots now of single-candidate and single-issue political action committees.

Does that fit into this at all, or am I wrong to think that has any— you know, it's not a usual— is it a usual facial challenge, or has to be wrong in all of its applications, or is there—

I think it's got to be wrong in all of its applications, because they're asking for an extraordinary remedy here to enjoin this—

Why is overbreath not part of how we think about this situation where it's wrong in a substantial number of applications?

Because in a facial challenge dealing with something like this, I think the standard is it's got to be illegal with respect to all of them. And here, I don't think it's even close to showing that it's illegal with respect to the majority of them, because the majority of them Most of them, after all, are single-issue candidates and campaigns at this point. Remember, this case is about donors and candidates where there is no equivalent coordination bar. That's the fundamental mistake of SpeechNow that we're asking you to correct. Maine voters said this creates the appearance and reality of corruption, and this is the chance for you and the voters to do something about this. Otherwise, we're left where the district court left us. The government can ban a $10,000 corruption, a $10,000 direct contribution to a candidate, but it can't ban the $10 million one to the candidate-aligned super PAC. That's upside down. It's clearly wrong. That's what the people of Maine have said loud and clear. And Your Honors, if not now, when? And if not on this record, what record are we going to need to do something about this tremendous damage to our political process?

Thank you.

Thank you.

Thank you, counsel.

That concludes argument in this case.

That was the oral argument presented today, July 29th, 2026, in the First Circuit Court of Appeals before Judge Montecalvo, Judge Thompson, and Judge Afrin. I'm grateful to Josh Elstroh at Elstroh Production for the quick production of this release. This is Larry Lessig. Stay tuned as we get more on this case.