Massachusetts Ballot Initiative to End Super PACs

Under Massachusetts law, no single contributor may contribute more than $1,000 per year to a Massachusetts political campaign. But this important limit is subject to a significant loophole: there are no limits at all on contributions to “independent expenditure PACs,” also known as “super PACs.” Any individual or entity may contribute unlimited amounts of money to a super PAC, which in turn may then expend all its resources in support or opposition of a single candidate or group of candidates. Free Speech For People and Equal Citizens, in 2022, submitted a ballot initiative petition to the Attorney General of Massachusetts, seeking its inclusion as a ballot question in the 2024 elections. The initiative would limit contributions by a single person or entity to $5,000 per year. This important limit will help prevent quid quo pro corruption and the appearance of corruption.

The Massachusetts Attorney General’s Office rejected the initiative, which prevents it from being introduced before the legislator or included on the 2024 ballot. In its declination letter, the Attorney General’s Office took the position that that the initiative petition would violate the constitutional right to free speech. It pointed out that several lower federal courts have held that limits on contributions to super PACs are unconstitutional.

None of these lower courts are binding on Massachusetts courts. Contrary to a common misconception, the Supreme Court has never considered this question, and the Supreme Court’s decision in Citizens United v. FEC does not prevent states from limiting contributions to super PACs. In March 2010, the U.S. Court of Appeals for the D.C. Circuit in SpeechNow.org v. FEC opened the door to super PACs by holding that the federal law limiting contributions to political committees to $5,000 per person each year could not be applied to a political committee that only make “independent expenditures”—expenditures that are not coordinated with a candidate or the candidate’s campaign. While some federal appellate circuits have followed the SpeechNow ruling, the U.S. Court of Appeals for the First Circuit, which has jurisdiction over federal cases in Maine, Massachusetts, New Hampshire, Puerto Rico, and Rhode Island, has yet to rule on this question, nor has the U.S. Supreme Court or the Massachusetts Supreme Judicial Court.

These super PACs carry significant risk of quid pro quo corruption and the appearance of corruption. While super PACs are not allowed to coordinate with candidates, there is significant risk that candidates and contributors to those super PACs could engage in quid quo pro corruption. For any given dollar amount, candidates might prefer contributions to their own campaigns. But because direct contributions are limited by law, an unlimited contribution made to a super PAC that supports a candidate (or opposes the candidate’s challenger) are extremely valuable to that candidate. This also creates the appearance of corruption, which can erode voters’ trust in our elections and the democratic process.

For these reasons, Free Speech For People challenged the Massachusetts Office of the Attorney General’s rejection of our initiative. Equal Citizens has also challenged this decision. The proposed initiative was constitutional and should have been placed on the ballot for consideration by the people of Massachusetts.

On May 6, the Supreme Judicial Court ruled the case was moot and did not address the Attorney General’s erroneous ruling. The Court decided that it did not have to hear the case because we had not yet gathered signatures supporting the petition. The Court’s ruling established that even petitioners who file their petitions more than two years in advance of the election in which the petition might appear on the ballot must gather signatures before the Court will consider their appeal. The Court did not reach the merits of Free Speech For People’s argument. Free Speech For People will continue to advocate for sensible limits on contributions to super PACs in Massachusetts both in the state legislature and as a potential future ballot measure.

Below is an article by Albert W. Alschuler, Laurence H. Tribe, Norman L. Eisen & Richard W. Painter, in the Fordham Law Review, that explains the importance of limits to contributions to super PACs.