Free Speech For People submitted a comment to the Massachusetts Office of Campaign and Political Finance urging it to close a longstanding, bureaucratically-created exception to the state’s campaign finance statutes. The arbitrary loophole allow politically savvy groups to avoid registering as political committees in Massachusetts while donating up to $15,000 directly to candidates. That’s 30 times higher than the limit for contributions from individuals.
In response to a petition for rulemaking, the Office of Campaign and Political Finance has proposed a regulation that would improve the situation and come closer to the requirements of the statute. Our comment welcomes this as an improvement from the current situation, but it is still not consistent with the statute, and the thresholds should be lowered.
As we explained here, the Massachusetts legislature has set strict contribution limits – $1000 for individuals and $500 from political committees – to prevent corruption. But the Office of Campaign and Political Finance has for many years created an exemption for groups that make “incidental” political contributions. This arose from a concern about small, non-political organizations being forced to register as political committees for buying a ticket to a candidate event. (The advisory opinion that led to the bulletin envisioned groups like “the Women’s Bowling Club of North Somerville” that might buy a $15 ticket to a candidate event once in ten years.) But in reality, some organizations are exploiting the agency’s guidance to pump $15,000 contributions to candidates into the system election cycle after election cycle. That $15,000 threshold, set in an Interpretive Bulletin, has no basis in the statute or any administrative record. Instead, it was set arbitrarily by the agency as representing an amount that is “no more than incidental.” It has also spawned a baseless challenge to Massachusetts’ long-standing ban on corporate contributions that is now being pressed at the United States Supreme Court in an effort led by the Goldwater Institute. Free Speech For People joined with Common Cause Massachusetts in filing an amicus brief in support of the ban at the Massachusetts Supreme Judicial Court that led to questions about whether the Interpretive Bulletin has the force of law.
Our comments on the agency’s proposed regulation
In response to a petition for rulemaking, the Office of Campaign and Political Finance has proposed a regulation that would improve the situation and come closer to the requirements of the statute. Under the proposed regulation, a group can still spend $15,000 per year on politics and the agency will continue to deem it “incidental.” But for the first time, groups below this “incidental” threshold will be subject to limits on how much they can contribute to any one candidate: $1000 to any candidate or $500 to any political committee. In other words, while the current interpretive bulletin allows a group to contribute $15,000 to a single candidate every single year without needing to register as a political committee, the proposed regulation would allow the group to contribute up to $1,000 to 15 different candidates while remaining unregistered.
This is a welcome step forward, but it is still not consistent with the statute, and the thresholds should be lowered. First, the contribution limits to candidates are too high, and create an incentive for groups not to register as political committees, since (under this plan) an unregistered organization can give twice as much to a candidate as could a registered political committee. Second, the “incidental” threshold is still too high. The legal maximum that a political committee could contribute to all political committees combined of both the Democratic and Republican parties combined is $10,000, which makes it absurd to suggest that $15,000 is just “incidental” political spending.
The agency intends to issue final regulations by May 1.