That’s why it must be defended, even if doing so is unpopular.
That’s why it must be defended, even if doing so is unpopular.
H ere’s a thought experiment: What percentage of your fellow citizens would have to vote against one of your constitutional rights before it ceased to be a right? Fifty-one percent? Seventy-five? Ninety? I suggest that no such threshold exists. A constitutional right, by definition, is not subject to a vote.
Yet that question was very much at issue recently, when the U.S. Court of Appeals for the First Circuit heard oral argument in Dinner Table Action v. Schneider. The case tests how far a state may go in limiting contributions to super PACs — political action committees that spend independently and do not coordinate with candidates. My organization, the Institute for Free Speech, represents the plaintiffs challenging the law.
The facts of the case are straightforward. In 2024, Maine voters approved a measure that capped contributions to independent expenditure committees at $5,000 per year and imposed broad new donor disclosure requirements. The law is inconsistent: It leaves contributions to party committees and some other PACs uncapped.
A federal judge blocked the law last year, finding that it violated the First Amendment. The state appealed. We are defending the district court’s ruling on behalf of our clients, two independent Maine PACs and their director.
The case provides a useful occasion to consider what it actually means to be serious about defending free speech in 2026. We’re told that free speech absolutists are tested most by speech so ugly that many wish it would simply disappear: a racist screed, a disturbing work of art, a video most of us would rather never see.
But those fringe cases are the easy ones. Courts have repeatedly affirmed that offensive and hateful expression enjoys the same constitutional protection as any other speech. The stakes are also much lower, because the functioning of our democracy does not depend on fringe speech.
By contrast, the harder cases, which campaign finance law keeps foisting upon us, do not concern profane or offensive speech. They concern speech that is organized, often well-funded, and capable of persuading the electorate. This form of speech lies at the heart of the First Amendment. The importance of campaign speech is precisely why those who disagree with particular messages want to regulate, control, or suppress it.
Proponents of increased regulation insist that limits on political spending are not restrictions on speech at all, but “good government” measures designed to preserve “democracy” and prevent “corruption.” “Money isn’t speech,” the argument goes.
Yet pamphlets, television ads, and canvassing all cost money. A law that prohibits spending money to purchase or manufacture a hunting rifle would violate the Second Amendment, just as a law that prohibits spending money to build churches or publish Bibles would violate the right to freedom of religion, and a law that prohibits paying a lawyer would violate the right to counsel. In the same way, a law that caps how much you may contribute to a super PAC is, functionally, a law that caps how much you may say.
In the landmark case of Buckley v. Valeo (1976), the Supreme Court ruled that independent spending caps violate the First Amendment. The Court has never wavered from that principle. Whatever one thinks of the policy merits, the debate over whether spending limits burden speech ended decades ago.
Buckley held that preventing corruption, or the appearance of corruption, is the only permissible basis for restricting campaign speech. Those who want to restrict political speech — either because they dislike its content or believe that the “wrong” people have too much influence — often use this principle to camouflage their arguments as efforts to combat corruption. Maine’s law now offers a case study in a broader rhetorical move — namely, the claim that lopsided voter approval can countermand constitutional law.
Maine’s ballot measure passed with nearly 75 percent support, and its defenders have made much of that number in the press and before the court. However emotionally appealing that argument may be, it misses the point. First, the vote shows only that people want less campaign speech — fewer TV and radio ads, fewer text messages, fewer robocalls, and fewer negative ads. But speakers use these tactics because they are effective tools for persuading voters.
Second, and most important, constitutional rights simply cannot depend on the electorate’s approval. If, for example, 75 percent of voters in a given state decided to authorize warrantless searches in order to “fight crime,” we would not treat the landslide as evidence of constitutionality. More likely, we would treat the politicians who promoted or endorsed such a measure as authoritarians in waiting. We would recognize it as exactly the kind of majoritarian overreach that the Bill of Rights exists to check.
Popularity alone does not make a measure constitutional.
None of this is to say that concerns about big money in politics are illegitimate as a matter of policy, or that reasonable people can’t disagree about campaign disclosure requirements or targeted measures to prevent corruption without limiting speech. For example, the Supreme Court has upheld the constitutionality of reasonable limits on contributions made directly to candidates, precisely because citizens are free to spend whatever they please independently of candidates to voice their opinions.
But debates about campaign finance must honestly treat all these restrictions as what they are: limits on otherwise constitutionally protected political speech. It’s disingenuous to pretend that the First Amendment simply isn’t implicated because the restricted activity happens to be a donation toward a group’s independent spending, rather than each donor creating her own pamphlet.
Much of the discourse around campaign finance law is biased. Reporters and editorial boards focused on issues of “reform” and “dark money” often don’t realize that there’s another side to the story. In turn, their readers encounter only one side of the debate and are understandably puzzled that federal courts so consistently rule the other way.
There’s a likely reason for that blind spot, and it isn’t entirely innocent. Newspapers and television news networks are themselves political speakers, yet campaign finance laws exempt them completely. The media can endorse or coordinate with candidates, shape narratives, and decide which stories rise to the surface, all without any regulation or disclosure requirements. When everyone else’s political speech gets squeezed, the voice of the institutional press grows louder by comparison. It should come as no surprise that outlets in the business of telling readers how to think about candidates often support rules that thin out the competition.
I doubt that most editorial boards consciously calculate their own share of the political speech market before endorsing a spending cap. But institutions, like people, rarely notice when their interests and their principles happen to align. News organizations would sing a different song if these rules applied to them.
And so, a one-sided and deeply distorted portrayal of the debate emerges: democracy vs. corruption; transparency vs. “dark money”; the people vs. shadowy billionaires. Rarely discussed are the constitutional rights of citizens to speak out on matters of public concern and to associate and pool resources with other like-minded Americans.
As Justice William O. Douglas wrote 70 years ago, in one of the Supreme Court’s first campaign finance decisions: “The people determine through their votes the destiny of the nation. It is therefore important — vitally important — that all channels of communication be open to them during every election, that no point of view be restrained or barred, and that the people have access to the views of every group in the community.”
The marginalization of free political speech is a uniquely concerning trend. A citizenry that is taught to see campaign finance restrictions as merely a question of good government, rather than a serious threat to the First Amendment, will not notice when the same logic is gradually extended to other forms of disfavored political speech.
Defending persuasive political speech is not popular because, as with advertising generally, the public thinks there is too much of it. That’s also why defending core political speech is harder and less frequently lauded than defending fringe speech. But it is the most important responsibility of anyone who genuinely values free speech.