Union ‘loophole’ going to Supreme Court

THE SO-CALLED UNION LOOPHOLE is a longstanding social injustice that MassFiscal, and its sister organization the Fiscal Alliance Foundation, are determined to right. On Wednesday, we teamed up with the Goldwater Institute and filed a petition with the US Supreme Court of the United States.

MassFiscal began its quest after the 2013 Boston mayoral election when Marty Walsh defeated John Connolly in a close election. The Fiscal Alliance Foundation, a 501(c)3 non-partisan, non-profit organization, was created in 2017 to educate the public about precisely this kind of social injustice, while MassFiscal advocates for fair and equitable solutions.

Our role in this process is nothing short of an honor. We cannot think of a better use of our time than to help knock down constitutionally suspect state campaign finance laws, especially when they involve unions.

The case began in 2015, when the Goldwater Institute teamed up with MassFiscal founder Rick Green and board member Mike Kane to file a lawsuit challenging the scheme. This past September, the Massachusetts Supreme Judicial Court upheld the law.

There was some promising language in Justice Scott Kafker’s concurring opinion, as it spelled out a bit of a roadmap to attack the law based on differential treatment of corporations and unions and equal protection. There’s a better chance the US Supreme Court would take this case with its current composition. There was a similar case that came out of Iowa in 2014 that the Supreme Court refused to hear (Iowa Right to Life v. Tooker). However, considering this court’s apparent aversion to unions, especially in the Janus decision in 2017, we think there is a much better shot at the court granting certiorari. Everyone involved is very optimistic that the Supreme Court will give the case a more even-handed review.

On a related note, today the state office of Campaign and Political Finance will hold a public hearing on the future of the union loophole in Massachusetts. While the loophole was upheld by the Supreme Judicial Court, the lawsuit did have the positive result of bringing attention to its weak legal footing and vague origins. The court instructed the Office of Campaign and Political Finance to codify its rules because they were weak at best. MassFiscal and several other pro-business groups are expected to testify for ending the loophole, while some union bosses will defend it.

The Massachusetts Teachers Association, ever caricatures of themselves, will even advocate for its expansion and tying the donation limits  to inflation. Is it possible to be more out of touch than that?

Although perhaps created with the best of intentions, the union loophole is regularly exploited and frequently benefits some candidates over others. It allows unions to donate up to $15,000 to state candidates, while individuals can only give up to $1,000, PACs can donate $500, and employers cannot donate anything at all. The unregulated money Mayor Walsh received through the loophole could have made the difference in what was considered a close election. Walsh received hundreds of thousands of dollars from union loophole money: eleven $15,000 donation checks, or $165,000 in total, between July 29 and October 30, 2013. Of the total, 73 percent came from out of state.

Nor is the loophole a partisan issue. Just this past election cycle, many watched the competitive Democratic primary between incumbent Secretary of State William Galvin and his challenger, Boston City Councilor Josh Zakim. So did the union bosses who exploit the union loophole. Galvin received five union loophole donations while Zakim received nothing. Even when elections are considered safe, the union loophole plays a factor. Attorney General Maura Healey faced off against a token opponent and yet she received $24,000 in union loophole money.

The union loophole was also exploited in this past November’s election for state treasurer. Republican Kieko Orrall did not benefit from the union loophole while incumbent Treasurer Deborah Goldberg did. Goldberg received four union loophole donations while Orrall received nothing. Orrall is no stranger to confronting the unfair advantage of the union loophole. She was first elected to the House in 2011 by defeating Roger Brunelle in a special election, who had raised 44 percent of his campaign funds —$20,000 — from union loophole donations. Orrall was able to overcome the union loophole in 2011 but not in 2018.

As one final example, I would be remiss not to mention last year’s state Senate special election, in which union boss Paul Feeney defeated Jacob Ventura by only 577 votes out of nearly 15,000 cast. Feeney benefited from over $70,000 in union loophole donations. Ventura received none.

As the Office of Campaign and Political Finance is aware, MassFiscal has worked closely with the agency on improving its regulations. And, at times, we have even brought suit against the state to help bring more fairness and social justice to state campaign finance law.

But even where we have disagreed, we believe the Office of Campaign and Political Finance agrees with us that fairness and fidelity to the law should be the only filters through which all campaign finance matters should be judged. Union bosses want to keep the status quo, as they benefit from a longstanding and unfair legal advantage. Campaign finance law has a long history of being used in the political arena as a weapon to silence opposing views. This is why MassFiscal and the Fiscal Alliance Foundation feel it is so important to ensure that our campaign finance regulations are clear and fair. The union loophole is clearly unfair.

Paul Diego Craney is the spokesperson for the Massachusetts Fiscal Alliance. Follow him on Twitter @PaulDiegoCraney.