Posted on September 9, 2022 Challenging Foreign Influence Share: The Massachusetts Attorney General’s office has rejected a ballot initiative petition submitted by two nonpartisan, nonprofit organizations, Equal Citizens (equalcitizens.us) and Free Speech For People (freespeechforpeople.org) that would end super PACs in Massachusetts state and local elections by limiting contributions to them to $5,000 per year. In rejecting the initiative, the Attorney General’s office adopted arguments by some lower federal courts, with no jurisdiction over Massachusetts, that limits on contributions to “independent expenditure PACs” unconstitutionally infringe upon freedom of speech. Before 2010, federal law and the law of many states (including Massachusetts) limited the amount of money that any one donor could contribute to political action committees. After the Supreme Court’s 2010 decision in Citizens United v. FEC, which held that limits on so-called independent political spending by corporations are unconstitutional, several lower federal courts (though none with jurisdiction over Massachusetts) decided that limits on contributions to “independent expenditure PACs”–political action committees that promise not to coordinate their political spending with candidates–are also unconstitutional. That gave rise to the “super PAC”: political committees that raise unlimited contributions from wealthy donors, corporations, and 501(c)(4) secret money groups, then spend the money on political campaign advertising and other campaign expenses that are often indistinguishable from (and sometimes dwarf) that of candidates’ official campaigns. In 2011, the Massachusetts Office of Campaign and Political Finance unilaterally announced that it would no longer enforce the Massachusetts statutory limit on contributions to independent expenditure PACs, even though no court had struck down that limit and no state or federal court with jurisdiction over Massachusetts had addressed the issue, and as part of a 2014 revision to the state’s campaign finance law, the legislature removed the limit. In June 2022, Equal Citizens and Free Speech For People jointly presented a ballot initiative petition that would restore a limit on contributions to independent expenditure PACs in Massachusetts, set at $5,000 per calendar year–the same as the federal limit that will be restored when the 2010 lower-court case that paved the way for super PACs in federal elections (SpeechNow v. FEC) is overturned. The proponents provided two distinct legal arguments for why limits on contributions to super PACs are–contrary to the lower-court decisions that have opined otherwise–consistent with the First Amendment and freedom of speech. Both arguments show that these limits serve a compelling government interest in preventing corruption or the appearance of corruption–the interests consistently identified by the U.S. Supreme Court, starting with Buckley v. Valeo (1976), as justifying political contribution limits. Equal Citizens’ legal analysis shows that the Framers of the U.S. Constitution understood the concept of corruption to include not just so-called “quid pro quo” corruption (bribery, extortion, and the like), but also a broader concept of institutional corruption, where a legislature or other group of elected officials can be corrupted by an improper dependence on interests other than the voters (e.g., wealthy megadonors). Equal Citizens explains how large contributions to independent expenditure PACs can create institutional corruption or its appearance. Free Speech For People’s legal analysis shows that, even if the corruption analysis is limited to quid pro quo corruption, large contributions to independent expenditure PACs can form the “quid” in a corrupt transaction. Politicians may value large contributions to super PACs supporting their campaigns even if they cannot directly control the resulting political spending. Just as both federal and Massachusetts bribery law recognize that a bribe may consist of a payment to a third party like a politician’s alma mater, favorite charity, or family member, so too a bribe may consist of a payment to a super PAC supporting that politician. The Attorney General’s two-page declination letter contained just two paragraphs of analysis. It simply noted the existence of SpeechNow and other lower federal court cases from different parts of the country (none applicable in Massachusetts) and concluded that therefore the petition would violate free speech rights. Equal Citizens and Free Speech For People intend to challenge the Attorney General’s decision in court.