An update on our case to end SuperPACs
By Lawrence Lessig
I’m writing with some important news about our lawsuit to end SuperPACs — certainly the most important litigation we’ve pursued.
Today, we’re filing a petition in the United States Supreme Court to review the decision in Alaska. If they agree, then there is a real chance that we can end the scourge of SuperPACs.
You can read our brief here.
The background: For years, many of us have recognized that a principled originalist — one who consistently applies the theory that the Constitution should be interpreted according to its original meaning — should be willing to uphold Congress’ power to regulate SuperPACs. We’ve also recognized that on the Supreme Court today, there are at least three Justices (maybe four) who call themselves principled originalists. Those two facts led us to file a lawsuit in Alaska (now three years ago) essentially asking the Alaska courts to recognize that a majority of the United States Supreme Court, although for different reasons, would uphold the regulation of SuperPACs. Three Justices we’re certain would side with us (because they’ve said as much), though not on originalist grounds — Justices Breyer, Sotomayor, and Kagan. If we can persuade two of the originalists, we would have a majority.
To press our argument, we brought perhaps the most important historian on the original meaning of our Constitution — Stanford Professor Jack Rakove — to Alaska to testify about the Framers’ view of “corruption.” That Court then ruled in our favor, but not for the reasons we offered. Then in September, the Alaska Supreme Court ruled against us, essentially ignoring our arguments about originalism.
Today, we’re asking the United States Supreme Court to vacate the judgment in Alaska, and to instruct the Alaska Courts to consider whether, from the perspective of an originalist, a sovereign state should be free to regulate what we’ve termed “institutional corruption.” The right answer to that question is “yes.” And when we get back to the United States Supreme Court, we will ask them to affirm what is clear from their own writing — that a majority of the Court, if for different reasons, would uphold the power of a sovereign state to regulate SuperPACs.
It’s a long shot, no doubt. And the strategy depends upon something I know many on the Left just don’t believe — that the Conservatives on the Supreme Court would be principled in applying their theory of originalism, regardless of the political consequences of that decision.
As you may know, though I’m not a conservative, I clerked for a famous conservative originalist — Justice Scalia. That experience no doubt affects my judgment, because there were many times when he was guided to do the principled thing, despite it not also being the conservative thing. Our strategy depends upon there being at least two like (that) Scalia on the Supreme Court today. Justices Thomas, Gorsuch and Barrett tell us that’s who they are. Our case is a chance for them to prove it.
If we can prevail at the present stage, then there will be an enormous fight — first in the Alaska courts, and then at the Supreme Court — to establish what originalism requires. But we have wanted that fight for many years. This case would be a chance for even conservatives to recognize why the Constitution should not be read to bar a sovereign state from regulating SuperPACs. If we can achieve that goal, there’s a real chance we could end the ugliness of SuperPACs within our democracy everywhere.
Ours is the only case that has ever pressed an originalist argument against SuperPACs in the Supreme Court. I’ve been told by many it’s a crazy move. But it might well be the only move we’ve got left. I’m so grateful for the support you have given to make this possible. If you can help more, you can do so here.
