Massachusetts has prohibited business corporations from making political contributions since 1907. On Tuesday, March 6, the Massachusetts Supreme Judicial Court heard arguments in 126 Self Storage v. Sullivan, a challenge to the state’s longstanding ban. (In 2015, we wrote about the trial court decision in this case, back when it was known as 1A Auto Inc. v. Sullivan.)

Despite a blistering rebuke by the lower court ruling that the corporate challenge “flies in the face of years of U.S. Supreme Court and U.S. Court of Appeals jurisprudence upholding such a ban,” the plaintiffs and their counsel, the Arizona-based Goldwater Institute, pressed on as part of a national strategy to weaken state protections against expanding money in politics.

A key part of the corporations’ challenge has been that while Massachusetts law prohibits corporations from contributing to candidates at all, labor unions are currently permitted to contribute up to $15,000 per year to a single candidate. Free Speech For People, working closely with Common Cause, filed a “friend of the court” brief emphasizing that in this case, there is simply no reason to reach the constitutional claims raised by the plaintiffs. But the basis for that difference is not the law itself, which provides no such $15,000 limit. Under the law itself, a labor union could (like any other organization) establish a political committee that can receive up to $500 from each donor and then contribute, at most, $500 to each candidate. The $15,000 “limit” is not in the law, but rather an exemption created through an “interpretive bulletin” issued by the Massachusetts Office of Campaign and Political Finance (OCPF), the agency that administers the law. And the interpretive bulletin is incompatible with the statute that the Goldwater Institute has challenged.

Common Cause and Free Speech For People urge the Court to recognize this case for what it is, an administrative law challenge masquerading as a constitutional claim. As our brief explains, “an administrative bulletin of uncertain provenance is no basis on which to strike down a century-old ban on corporate donations,” especially when the interpretive bulletin cannot be reconciled with the text of the statute. Our brief instead urges the Supreme Judicial Court to remand the case to the trial court so that the interpretive bulletin may be addressed by the parties there, or, alternatively, to strike down the interpretive bulletin as inconsistent with the statute, and thus eliminate most of the constitutional issues from the case.

In response to our amicus brief, the corporations argued that their argument does not actually depend on the interpretive bulletin.

Just one day before oral argument in the Supreme Judicial Court, the state sent a letter to the court noting that “[t]he amicus brief raises, for the first time, important concerns about the compatibility of OCPF’s Interpretive Bulletin … with the statute it interprets …. It also raises important concerns about whether [the bulletin], as a standard or requirement of general application, should have been promulgated as a regulation ….” The state then noted that either the corporations’ response to the amicus brief reframed their claims (as not depending on the interpretive bulletin) and therefore presents quite different issues from how the case was originally argued, or “the court should remand the case to the Superior Court with appropriate instructions to OCPF to take up the question”—precisely what our amicus brief requests.

During oral argument, the state specifically cited the argument in our brief. In response to a suggestion by Justice Scott Kafker that “You’ve got to defend the $15,000 difference,” assistant attorney general Julia Kobick responded that, to the extent that the plaintiffs’ argument relies on that $15,000 figure derived from the interpretive bulletin, our amicus brief makes points under state law that make a remand appropriate.

Key documents

Corporations’ brief on appeal

Office of Campaign and Political Finance brief

Corporations’ reply brief

Common Cause/Free Speech For People amicus brief

Corporations’ opposition to Common Cause/FSFP amicus brief

Office of Campaign and Political Finance response to corporations’ opposition to amicus brief