Why stopping the super PAC ballot question is important

More voices, not less, should always be encouraged

ON JANUARY 21, the famous Supreme Court decision of Citizens United vs the FEC celebrated its 13th anniversary, but here in Massachusetts the efforts to undermine this expansion of our right to free speech and association before an election continues.  If it’s not stopped now, it would most likely result in unions having the loudest voice in elections over employers and individuals.

The Citizens United decision essentially placed individuals, employers, and unions on the same level playing field. In short, it treats them all the same. Any one voice, or any association of voices, may be heard leading up to an election, so long as they do so independently of the candidate they are trying to elect or defeat.

The decision ushered in the emergence of ‘”independent expenditures,” which are commonly performed by super PACs (Independent Expenditure Political Action Committees) but are not exclusive to super PACs. A super PAC is an independent expenditure committee and the main difference between a super PAC and a PAC is that super PACs may raise and spend an unlimited amount of money to elect or defeat a candidate. They cannot contribute directly to a candidate, and they cannot coordinate their expenditures.

A PAC usually has restrictions on how much they can raise, what sources they can raise it from, and how much they can contribute. A regular PAC can contribute directly to candidates. In Massachusetts campaign finance law, a PAC cannot accept any corporate donations and, up until 2019, unions could give up to $15,000 to a PAC, while individuals could only give $500. Massachusetts Fiscal Alliance and the Fiscal Alliance Foundation were the leaders in eliminating this “union loophole,” which gave an unfair advantage to unions.

The Citizens United decision also allows for ordinary people, employers, and unions to perform independent expenditures without establishing a super PAC. This is a good thing; it acts as a way for anyone or any organization to be heard leading up an election. More voices, not less, should always be encouraged.

Among the main reasons for why the Supreme Court made this ruling is because campaign finance law is regularly used as a weapon to silence speech and intimidate political opponents, therefor creating a massive spider web to entangle political foes and help allies. Look at the Massachusetts union loophole as a great local example. The country’s highest court agreed that more voices are needed to be heard and the decision was fairly ruled. Some of the loudest voices who benefited the most from the previous status quo initially barked the most when the decision was rendered. For decades, they benefited from the weaponization of campaign finance law. Elite politicians and their preferred allies had the most to lose and the general public had the most to gain.

Since the decision, major politicians and their allies have eventually accepted the emergence of super PACs and independent expenditures. US Senator Elizabeth Warren vowed them off when she first got elected in 2012 but embraced them when she ran for the Democratic nomination for president. Former governor Charlie Baker benefited from a super PAC during his two successful campaigns and more recently Gov. Maura Healey and Boston Mayor Michelle Wu had super PAC support. Almost every successful Massachusetts politician has benefited from super PACs, the Citizens United decision, and, as a result, more voices have been heard before important elections.

Last September, the Fiscal Alliance Foundation offered testimony to then Attorney General Maura Healey’s office to disqualify a potential 2024 ballot question proposed by Harvard Law Professor Larry Lessig. Lessig’s ballot question is called “Initiative Petition for a Law Relative to Limiting Political Contributions to Independent Expenditure PACs,” and would place a limit of $5,000 on contributions that super PACs could accept. The attorney general agreed with the Fiscal Alliancd Foundation’s arguments and the ballot question was rejected. Our testimony was used in the reasoning for why the proposed ballot question was unconstitutional.

Lessig appealed the attorney general’s ruling to the state’s highest court, the Massachusetts Supreme Judicial Court, and earlier this week the court declared the issue moot and declined to render a decision.  The Fiscal Alliance Foundation offered an amicus brief for why the constitutional right of free speech and association would be limited under Lessig’s ballot question.

The Supreme Judicial Court justices further noted that while they are allowed to reach the merits of a moot question in order to address issues that are “likely to recur,” it was not clear that this would even be the case here. “The proponents have not demonstrated that they have the requisite support to satisfy the different signature gathering obligations set out in art. 48 necessary to make this an issue requiring judicial resolution. So far, they have only indicated that they themselves support the petition.”

For good measure, the SJC said it was reluctant to reach the merits of a moot constitutional question, noting that the constitutional issue is one of federal law, and that they did not want to be “deciding unnecessarily a question best left to the Federal judiciary.”

The proposed ballot question would not limit independent expenditures being made by people or organizations outside of super PACs. According to data from the state Office of Campaign and Political Finance, super PACs reported spending nearly $8 million to support or oppose candidates in the 2022 election cycle, with donations coming in from unions, individuals, and employers. However, only $437,000 was spent outside of super PACs as pure independent expenditures and unions were the largest voice. Approximately 65 percent of all independent expenditures outside of super PACs were made by unions, and less than 1 percent from people, and not a penny was spent by businesses. The remainder of the balance was spent by regular PACs, which cannot accept corporate donations.

It’s very plausible to envision this outsized influence of unions with Lessig’s proposed ballot question limiting super PACs but empowering unions to perform independent expenditures. Individuals and corporations may feel a sense of reluctance to make an independent expenditure by themselves but when associated with others through a super PAC, they give more freely. Unions don’t seem to have this concern. Lessig’s ballot question would further alienate the important voices of people and businesses, which may be the intention of the ballot question, but that goes against what the Supreme Court ruled in Citizens United.

Meet the Author

Paul D. Craney

Board Member & Spokesman, Massachusetts Fiscal Alliance
It’s not every day that we work with then-Attorney General Maura Healey to defend the freedom of speech and association derived from the Citizens United Supreme Court decision. Massachusetts voters were spared a potential 2024 ballot question that would limit our rights in order to protect politicians. Powerful national special interests and a prominent Harvard Law professor were unsuccessful in their goal to make Massachusetts their latest experiment. The Fiscal Alliance Foundation will continue to do everything in its power to protect these rights.

Paul Diego Craney is the spokesperson for the Fiscal Alliance Foundation.