Free Speech For People and Equal Citizens have filed two separate but related lawsuits to challenge the Massachusetts Attorney General’s Office decision to reject the ballot initiative petition that Free Speech For People and Equal Citizens submitted earlier this year.

The ballot initiative petition, if passed, would limit contributions to independent expenditure PACs, commonly called “super PACs,” to $5,000 per individual per calendar year. This petition is a continuation of FSFP’s previous work to limit super PAC contributions in Massachusetts, including advocating for bills introduced in the state legislature.

The Massachusetts Attorney General’s Office rejected the initiative, ruling in its declination letter that the initiative petition would violate the constitutional right to free speech. Now Free Speech For People and Equal Citizens are challenging this decision in court. The Free Speech For People lawsuit argues that unlimited contributions to super PACs create risk of quid pro quo corruption and the appearance of corruption; and that contrary to common misconception, the Supreme Court’s Citizens United decision does not prevent states from limiting contributions to super PACs.

Key Facts

Caption Herrmann v. Attorney General of Massachusetts
Court Supreme Justice Court of Massachusetts, Single Justice Session
Docket No.

SJ-2022-0409

Status Motion to dismiss is pending
Plaintiffs Robert Herrmann, Lars Mikkelsen, Joshua Redstone, Graeme Sephton
Defendants Attorney General and Secretary of State of Massachusetts
Related Case Baxter v. Attorney General, SJ-2022-0410

Background

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 is challenging the Massachusetts Office of the Attorney General’s rejection of our initiative. Equal Citizens has also challenged this decision. The proposed initiative is constitutional and should be placed on the ballot for consideration by the people of Massachusetts.

Reports: The SpeechNow Case and the Real World of Campaign Finance

The SpeechNow Case and the Real World of Campaign Finance

By Stephen R. Weissman Ph.D.

FSFP Weissman Report final 10-24-16In the U.S. Court of Appeals for the D.C. Circuit’s SpeechNow decision, which created super PACs, the court theorized that contributions to so-called “independent expenditure committees” could not possibly result in corruption. In the real political world, however, as this study shows, top donors to super PACs and other independent spenders are not only contributing to these groups. They are simultaneously giving directly to the very candidates who benefit from their contributions to independent spending. The typical two-track donor supports multiple candidates in this fashion.

Thus, while independent spending groups are legally restrained from coordinating with their beneficiaries, donors to such groups are legally permitted to financially coordinate with these same candidates within certain contribution limits. When donors amplify their legally limited direct contributions to candidates with unlimited indirect support via independent spending groups, an “anti-corruption interest in limiting contributions to an independent expenditure group” certainly arises. These unlimited contributions intensify the dangers of quid pro quo corruption and its appearance that contribution limits were established to prevent.

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The SpeechNow Case and the Real World of Campaign Finance: Undermining Federal Limits on Contributions to Political Parties Pt. II

By Stephen R. Weissman Ph.D.

This report explores the top 100 individual and 50 organizational donors to independent groups in the 2012 and 2014 elections. It focuses on those who gave to one or more of the six official national party committees and also contributed to unofficial party-linked Super PACs active in the same election(s).

There are federal limits on how much a donor can give to an official party committee per year, but following the SpeechNow ruling, there are no set limits on contributions to party-linked super PACs. For example, in 2014, the maximum a donor could give to a party committee per year was $32,400; assuming a donor who gave to all three committees of one party, that’s $97,200 to party committees. Under federal law, $97,201 would be illegal—too high a risk of quid pro quo corruption—but that same donor can give millions to party-linked super PACs. In essence, donors can multiply their legal direct party contributions by giving to party-linked super PACs at levels far beyond what Congress has determined is necessary (and the Supreme Court has so far upheld) to protect against corruption. This pattern of giving completely undermines the limits on contributions to parties.

The large donors surveyed in this study made very substantial contributions to their preferred party committees. The size of these contributions, while within legal limits, assured that these donors would be noticed by party fundraisers, many of whom were themselves candidates and elected officials. When these donors simultaneously embellished their financing by massively subsidizing independent Super PACs linked to the same parties in the same elections, they intensified the danger of corruption and its appearance.

By ignoring such political realities, the SpeechNow decision has helped undermine federal contribution limits, the primary means of federal regulation of campaign financing.

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Why Limits on Contributions to Super PACs Should Survive Citizens United

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.

 

Major Case Developments and Documents