THE SUPREME JUDICIAL COURT heard arguments Monday on a thorny and novel question of political spending and free speech rights. Proponents of a potential 2024 ballot measure limiting individual campaign contributions to political action committees are asking the high court to find the measure was improperly rejected by then-Attorney General Maura Healey’s office last year.
The ballot question, submitted in June 2022 and rejected in September, would have imposed a $5,000-per-year limit on contributions from individuals to independent expenditure PACs, also known as super PACs. These PACs can raise and spend unlimited amounts of money from individuals and corporations and can use that money to oppose or support candidates as long as there is no coordination between the PAC and campaigns.
Healey is now in the governor’s office, but her successor, Andrea Campbell, is continuing to maintain that the limitations envisioned by the ballot question would be “inconsistent with the freedom of speech as protected under the state constitution.”
Two groups of voters brought complaints contesting Healey’s decision to the state’s highest court, looking for a resolution on the constitutional questions and approval to gather signatures to get the measure on the ballot.
In their merged complaint, the groups say there is a dissonance between the way that Massachusetts regulates other individual campaign contributions – limited to $1,000 per candidate or $5,000 per political party annually – and the free-for-all contributions to super PACs.
“Independent expenditure PACs play a significant role in election spending, and unlimited contributions to supportive independent expenditure PACs are far more valuable to candidates than the small direct contributions that are limited by state law,” the groups wrote in their brief.
Lawrence Lessig, professor of law and leadership at Harvard Law School and founder of the nonprofit Equal Citizen, noted in his arguments before the court that the 2021 Boston mayor’s race featured a super PAC where contributions climbed to more than $1 million from a single donor.
Valuable or not, this kind of political spending is protected speech under the state Constitution, Campbell maintained in a 43-page brief. Ballot measures cannot be certified if it is “reasonably clear” that the measure contains an “excluded matter,” such as infringements on protected speech, the brief said.
Citizens United loomed over the oral arguments. The landmark 2010 US Supreme Court case held in part that corporate political spending and other independent political expenditures constituted a form of protected speech. It ushered in a wave of lower court decisions supporting political expenditures as similarly protected speech, as long as there is no coordination with a candidate or political party.
Importantly, the court in Citizens concluded that the fear of corruption, the rationale used to limit direct contributions between a donor and a candidate, was not enough to justify banning independent political speech through expenditure limits.
An amicus brief from the conservative Massachusetts Fiscal Alliance Foundation supported the attorney general’s refusal to certify, citing Citizens and arguing that the government has “no anti-corruption interest in limiting individual expenditures.”
Massachusetts courts have not definitively resolved the constitutional question of PAC contribution regulations, the attorney general’s office said in the letter rejecting the certification of the ballot question. However, state protections are generally interpreted as comparable to or broader than federal First Amendment rights, and “it is clear that this proposed law would violate the free speech rights afforded by the state constitution,” Anne Sterman, deputy chief of the attorney general’s government bureau, wrote in the letter.
In court on Monday, Sterman said nothing has changed. “As plaintiffs acknowledge, we’ve got the Citizens United decision and we have a chorus of federal appellate courts who have uniformly held that an inexorable conclusion from Citizens United is that the contribution limits proposed by this law violate the Constitution,” she said. The attorney general’s role “is not to predict, not to make certification decisions based on the law as she wishes it would be, not on her policy preferences, but to call the balls and strikes based on the law that it is.”
During oral argument, the justices who spoke largely concurred with the attorney general’s interpretation of the law.
“Every federal court that has looked at the issue has said that is unconstitutional,” said Justice Dalila Argaez Wendlandt.
Lessig and Ron Fein, legal director of Free Speech For People, argued before the court that, while there may be legal consensus that expenditures cannot be restricted, there is no clear bar on regulating contributions. And that presented a narrow but novel legal angle.
“The question we are teeing up, as has been teed up in other contexts, is whether contributions shall follow the same rule as the expenditure,” Lessig said.
On the merits, justices probed for case law or an interpretation of Citizens United that might treat contributions and expenditures differently. It seemed to Justice Scott L. Kafker that “Citizens United created this impenetrable First Amendment armor around expenditures,” and Justice David A. Lowy pointed to remarks in a prior case – 1A Auto – that the ability to make unlimited contributions to such PACs was “a significant form of political expression.”
Before even getting to the free speech considerations, the court considered a logistical question – is the issue of the ballot rejection moot, or no longer relevant, because proponents should have gathered the needed signatures in late 2022 before coming to the court for a ruling on the merits?
Justices seemed unconvinced by those arguments, as the measure’s possible appearance on the 2024 ballot leaves proponents with more than a year to build support and gather signatures. Lowy said, straightforwardly, that the ballot campaign did not have to gather its signatures by last December, as the attorney general’s brief argued. If anything, Kafker said, the court may have “improvidently” decided to hear the matter on the early side.
“The problem is it’s not really moot,” said Kafker. “I get that we shouldn’t be messing around with theoretical constitutional issues, and that may be a reason why we shouldn’t decide this case, but it meets the language of the constitutional provision… it meets the requirements and it’s a live issue if they can actually get the signatures for it.”
An alternative argument that it may not yet be timely, or ripe for a decision, landed only slightly better.
“We have a petition that wants to be on the ballot in 2024, we have the AG saying no dice, we have engagement of two opposing views in actual controversy and nothing in Article 48 [which governs ballot initiatives] that says ‘ye must get an injunction in order to get the signatures,’” said Wendlandt.
Though Wendlandt acknowledged the court does not want to hastily wade into constitutional questions unnecessarily, she asked, “Isn’t this a situation where we have a ripe constitutional issue that’s not moot?”
Throughout the arguments, justices mulled their appropriate next step. Lessig and Fein had argued that the court’s consideration of the speech question was essential before the signature gathering stage. Sterman asserted that this could set a messy precedent where ballot campaigns could feel empowered to come directly to the courts for judgement before even demonstrating with enough signatures that the voters of Massachusetts were interested in the measure.
“I understand their point, it’s going to be harder to collect the signatures,” Kafker acknowledged. “I’m not sure I feel that should compel us into deciding an incredibly novel, difficult, constitutional issue that will probably get us smacked down by the US Supreme Court.”