SCOTT SIMON, HOST:
Outside spending can create an advantage in elections, but not always. There was a lot of outside spending in Michigan's Democratic Senate primary this week - funds that came from an interest group or sometimes undisclosed sources, not a candidate's official campaign coffers - but the candidate with the most funds did not win. Concern about outside funds is behind a 2024 law in Maine that caps donations to independent expenditures - or super PACs, as they're called - at $5,000. That law is now being challenged in a federal appeals court.
Lawrence Lessig is a professor of law and leadership at Harvard Law School. He clerked for Justice Antonin Scalia in the early 1990s and helped push Maine's law to limit donations to super PACs. He joins us now. Thanks so much for being with us.
LAWRENCE LESSIG: Thanks for having me.
SIMON: Is outside funding as big a problem as some fear?
LESSIG: Absolutely. It's bigger. I don't think people really understand exactly how consequential it is. And cases like what we saw in Michigan and actually New York's mayoral election seem like counterexamples. But I actually think it's the same point because both of those candidates made outside spending the issue. They were targeting the fact that their opponent was supported by outside money, and it's just triggered Americans because so many of us are outraged by the rise in this outside spending.
SIMON: What about the argument that, for example, Maine's law rubs up against the U.S. Supreme Court Citizens United decision, which said political donations amount to free speech and can't be curtailed?
LESSIG: Yeah. You know, I think Citizens United is one of the most misunderstood opinions in the history of the Supreme Court. The only reason the Supreme Court has given for limiting the size of political speech is if there's a risk of corruption. And if you're not dealing with the candidate, if you're not coordinating with the candidate - the Supreme Court ruled in Buckley 50 years ago and also in Citizens United - there's no risk of corruption.
This case does not disagree with that holding at all. So the question in this case is not whether you can spend unlimited amounts of money or whatever money you have. Of course, you can. The Supreme Court's affirmed that twice. The question here is whether you can limit the size of contributions to the committees that make those expenditures. What we're saying is under the logic of Citizens United, Maine and the United States and any other state has the right to limit the size of contributions because we've obviously seen those contributions tied to corruption.
SIMON: How so? That's going to sound naive, but how so?
LESSIG: Think about, for example, Senator Robert Menendez, who in 2015 was charged with corruption - charged with bribery. And the allegation was some rich guy came to him and said, I'll give your super PAC a bunch of money if you will do some favors for me. Now, the jury eventually acquitted him. But what's important about that story is the pattern that the government alleged. And the pattern was there's a quid pro quo involving a contribution to a super PAC. Now, that was exactly what the D.C. Circuit in the case that created super PACs said wasn't possible, said couldn't happen - said there was no risk of corruption with a contribution to a political action committee.
SIMON: I wonder, Professor Lessig. What does all this debate about super PACs and dark money and donations have to tell us about the state of our democracy these days?
LESSIG: Yeah. I think it says a lot. The Brennan Center last month released an extraordinary study of Americans' attitudes about corruption. They found, on a number of dimensions, more than 90% of Americans agree that this political system has become corrupted. New York Times in March reported that in 2010 - the year super PACs were launched - 0.3% of outside spending came from billionaires. In 2024, 19% of outside spending came from billionaires, a 63-fold increase in those 14 years. And this is because this system basically begs the billionaires to come forward and leverage their power through the super PAC to get whatever political result that they want.
SIMON: To come back to your original point, have we reached the stage where a candidate who accepts or raises money that way creates a counterargument against themselves in the middle of an election?
LESSIG: I hope so. The thing Mayor Mamdani could do is, because New York City has a kind of public funding system, he could raise the money he needed to run his campaign through the matching-funds system that New York gives. Like, for every dollar up to $175, the city will match that 8 to 1. So he could run a campaign where he said, I'm going to raise money from small donations, and that's all I'm going to need to be able to compete. And I can turn around, and I can point to Governor Cuomo's campaign. And I can say, he's depending on the billionaires' money - the AIPAC money, the money coming from the crypto super PACs, all of these super PACs. And because people are so tuned to this issue, that became an enormously powerful message.
And that's the same thing in El-Sayed's campaign in Michigan, and it triggered voters in that state. And I think the important thing to remember is it doesn't trigger just people on the left. I gathered signatures for this initiative on Election Day in 2023, the Maine initiative. 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? So I showed him the initiative - the anti-super-PAC initiative. And he read it, and he said, hell yeah. And he signed it. And he said, I'm going to get everybody who signs my petition to sign your initiative too. And that's what he did for the couple hours he was there because it's not a left-right issue.
It's like - Americans look at this political system, and they say, this is corrupt. And so if you've got candidates who are credibly saying, I'm not buying into that system. I'm not going to accept their money. I'm going to call on my opponent to say the same - then people have a reason to begin to believe that they're going to be legislating. They're going to be representing the people, not the super PACs.
SIMON: Lawrence Lessig, Harvard law professor and founder of Equal Citizens. Thanks so much for being with us.
LESSIG: Thank you.
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