BOSTON (CN) — The Massachusetts Supreme Court seemed flummoxed Monday by a proposed ballot question that would cap contributions to super PACs at $5,000 a year, with one justice calling it “an incredibly complex First Amendment case” and several seemingly looking for an excuse to avoid deciding it.
The ballot initiative was supported at oral argument by Lawrence Lessig of Harvard, whom Judge Richard Posner once called "the most distinguished law professor of his generation” and who was once portrayed by an actor on the TV show "The West Wing."
“You’re the Lessig who writes on all this stuff and I’m hesitant to disagree with you,” said Justice Scott Kafker, but he disagreed anyway and said the Supreme Court’s Citizens United decision seemed to foreclose limits on political contributions. “Maybe it’s silly reasoning, but it’s the reasoning,” he said.
Lessig responded that Citizens United was about limits on political expenditures and didn’t apply to contributions.
Super PACs are frequently criticized for injecting big money into politics — while donations to individual candidates are strictly limited by federal and state law, wealthy people can effectively do an end-run around these limits by making huge contributions to a candidate’s PAC, or political action committee.
Between 2010 and 2018, a total of $1 billion was donated to super PACs by a mere 11 people, according to Federal Election Commission data, meaning that a very small handful of the elite have an enormously outsized say in election results. (The list includes billionaire George Soros and recent presidential candidates Tom Steyer and Michael Bloomberg.)
Senator John McCain complained that super PACs “made a contribution limit a joke,” while former Secretary of State John Kerry called them “a form of corruption” and Senator Lindsey Graham said that, as a result, “basically 50 people are running the whole show.”
Super PACs aren’t allowed to directly coordinate their expenditures with candidates, but that means little in practice because big donors are allowed to communicate with candidates, and it’s not uncommon for a PAC to be run by someone who previously worked in a candidate’s campaign and knows exactly what the campaign needs.
Massachusetts has a $1,000-a-year limit on donations to political candidates, but the 2021 Boston mayoral election saw a single person give more than $1 million to a Super PAC supporting one of the hopefuls.
The ballot question was scotched last year by state Attorney General Maura Healey, who is now the governor. Healey ruled that it violated free speech, noting that limits on PAC contributions have been struck down as unconstitutional by the Second, Seventh and D.C. Circuits. The Department of Justice declined to appeal the D.C. Circuit decision to the Supreme Court, and the Federal Election Commission ruled that any such limits are invalid.
But Massachusetts law says that a ballot question can go forward unless it’s “reasonably clear” that it’s unconstitutional, and the plaintiffs argue that the law is not “reasonably clear,” with no U.S. Supreme Court or Massachusetts precedent on the issue and the state’s citizens should get a chance to vote on it.
Ronald Fein of Free Speech for People, a group backing the initiative, told the justices that contribution limits are more important than expenditure limits in preventing bribery and corruption accusations of the sort that resulted in federal charges against New Jersey Senator Robert Menendez.
Donors who want a favor could tell a politician that they’re making huge PAC contributions, Fein said, and that could amount to corruption, even if the PAC does nothing wrong in spending the money.
But Kafker responded that, “even if we did recognize your little hypothetical, you’re preventing any contribution, which seems to fall smack into exactly what Citizens United doesn’t like.” Kafker suggested that the ballot measure was overbroad because it prohibited any contribution over $5,000.
Fein replied that the state limits direct campaign contributions to $1,000, and “no one thinks a contribution of $1,001 is a bribe, but it’s prophylactic.” He said that many of the opposing court decisions dated from a time when no one had any idea how important super PACs would become, but today “PAC contributions dwarf individual contributions.”
Several of the justices suggested that they could duck a decision by waiting to see if the plaintiffs could gather enough signatures to put the question on the ballot and then rule only on the First Amendment issue.
“We shouldn’t decide constitutional questions unnecessarily,” Kafker said. “People can raise all sorts of interesting constitutional questions — or silly ones, we get lots of those — but … we can just wait and see if you get the signatures.”
Lessig, who briefly ran for president in 2016 and ironically started his own PAC to support campaign finance reform, replied that it was unfair to make the plaintiffs spend $1 million trying to gather signatures under the cloud of Healey’s claim that the proposal is invalid just to get a court decision on whether it is. He called it “a million-dollar filing fee.”
Kafker was unsympathetic. “You want to change the law of the commonwealth, then spend the money,” he said. “Yeah, it will be harder to get signatures, but I’m not sure that’s enough to make us decide an incredibly complex First Amendment case and likely get smacked down by the Supreme Court.”
But Justice Dalila Wendlandt disagreed. “We have a petition, we have the attorney general saying no dice, we have two opposing views in actual controversy, and there’s nothing in the statute,” she said, that says it can’t be ruled on.
Arguing for the Attorney General’s Office, Anne Sterman told Wendlandt that “you could say it’s not ripe because there’s been no demonstration of public support.”
“Where is that in the statute?” Wendlandt asked.
“Candidly, it’s not,” Sterman conceded.
Fein told the justices that they didn’t have to actually decide the First Amendment question; all they had to do was say that the issue wasn’t “reasonably clear” because there was no direct precedent. Then the plaintiffs could gather signatures without the hurdle of Healey’s ruling, and the court could revisit it if they succeed.
“You could say it’s not reasonably clear and preserve your options and reconsider the constitutionality if it passes,” he urged.
Healey is a Democrat, but all seven of the court’s justices were appointed by the state’s previous governor, Republican Charlie Baker.
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