U.S. Supreme Court may take up Massachusetts campaign law

Law prohibits corporations from contributing money directly to a candidate

By Kris Olson
BridgeTower Media Newswires

BOSTON, MA - The U.S. Supreme Court may have the last word on the constitutionality of Massachusetts' ban on for-profit corporations contributing to political candidates and their campaigns.

The Supreme Judicial Court earlier this month turned away First Amendment and equal protection challenges to G.L.c. 55, §8, in 1A Auto, Inc., et al. v. Director of the Office of Campaign and Political Finance.

But the plaintiffs in 1A Auto will soon be filing a petition for certiorari with the Supreme Court, according to their lawyer, Jacob Huebert.

"In any case challenging campaign finance limits, the government should bear the burden of justifying what it did by reference to its interest in preventing corruption," Huebert says. "Here, where [the state] was banning businesses from making contributions but allowing unions to make them, it needed to say why union contributions apparently did not present the kind of threat of corruption that they believed business contributions did."

Similar to the federal Tillman Act, G.L.c. 55, §8, generally prohibits business corporations and other profit-making entities from making contributions to state or local candidates.

Under the law, a Massachusetts corporation cannot contribute money directly to a candidate or to a candidate's campaign committee. In addition, a company cannot establish and administer a political action committee to solicit contributions for a candidate or contribute to a PAC that turns around and makes campaign contributions to a politician.

A business may spend however much of its own money it wants advocating on behalf of a particular candidate, as long as such expenditures are made independently of that candidate. Similarly, a company can contribute to an "independent expenditure PAC," so long as it promotes a candidate without coordinating its efforts with the candidate's campaign.

Huebert is an attorney at the Goldwater Institute, a conservative think tank in Phoenix. He represents 1A Auto Inc., and 126 Self Storage, Inc. Plaintiff 1A Auto is an auto parts retailer co-founded by Rick Green. The Pepperell businessman is the Republican nominee for the House seat representing Massachusetts' 3rd Congressional District.

In their lawsuit, the plaintiffs argue that, by banning corporate contributions, §8 violates their free speech and association rights under the federal and state constitutions. The plaintiffs also argue equal protection violations in that §8 prohibits for-profit corporations from making political contributions without also prohibiting unions and nonprofits from doing so.

In upholding the statute, SJC Chief Justice Ralph D. Gants relied largely on the U.S. Supreme Court's decision in Federal Election Commission v. Beaumont. In the 2003 case, the Supreme Court rejected a constitutional challenge to the federal ban on corporate contributions, reasoning it was justified by the government's interest in preventing corruption.

But Huebert says that Beaumont doesn't address the precise issue raised in 1A Auto: whether the state is unconstitutionally favoring union speech over the First Amendment rights of businesses.

"That's effectively what Massachusetts is doing by letting unions participate in politics in a way businesses cannot," Huebert says.

One might assume that a decision by a state supreme court comprised primarily of Republican appointees would stand a good chance of being upheld by a U.S. Supreme Court populated by justices with their own blood ties to the GOP, but Huebert says his clients' arguments could resonate with the justices in Washington, should they take up the case.

"In recent years, [the Supreme Court] has increasingly scrutinized campaign contribution limits or restrictions on speech in general that treat some speakers differently from others," he says.

One attorney who's concerned the Supreme Court could overturn the SJC's decision in 1A Auto is Renée M. Landers, a professor at Suffolk University Law School.

"The conservative, more business-friendly members of the court seem to want to limit restrictions on the speech of these corporations in ways that are detrimental to the public health and the financial welfare of consumers," Landers says.

Even assuming business speech should be considered "speech," Landers argues, it does not deserve the same protections as other forms of speech.

"The government ought to be able to regulate business speech to ensure marketing is truthful and not misleading and represents the regulatory status of certain products accurately," she says. "Strict scrutiny is not the right test."

Quincy election law attorney Paul N. Barbadoro says he can't predict how Supreme Court nominee Brett Kavanaugh could impact the court should he be confirmed. That said, Barbadoro maintains the SJC reached the "correct" decision in 1A Auto and doesn't see it being overturned.

"The distinction they made between independent expenditures and contributions is in line with the Beaumont decision," the Baker, Braverman & Barbadoro lawyer says. "I don't think there's the precedent there to change it. I'm not even sure [the plaintiffs] will get cert."

Published: Mon, Oct 08, 2018

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