At the heart of a case the Supreme Judicial Court heard Monday was a proposed initiative petition that would cap annual contributions to independent expenditure political action committees at $5,000 per person and then-Attorney General Maura Healey’s decision last fall to not certify it to move ahead towards a statewide ballot citing free speech protections.
But not even 30 seconds into arguments from petition supporters Monday morning, Justice David Lowy had a question that had nothing to do with campaign finance law or freedom of speech.
“Why do we decide this constitutional case? Where’s the actual controversy?” he said. Lowy added, “Why are we pontificating on this without knowing whether it’s ever going to be on the ballot?”
Justice Scott Kafker later referred to the matter before the SJC as an “incredibly novel, difficult constitutional issue that probably will get us smacked down by the U.S. Supreme Court” and wondered whether it was appropriate for the state’s highest court to get involved at this stage.
At issue is a proposed initiative petition filed in June 2022 and rejected in September. It would have limited contributions to super PACs to $5,000 in a calendar year.
When Healey’s attorney general’s office in September declined to certify the petition, it said that the proposal “is inconsistent with these rights protected by the state constitution because it would impinge on the freedom of speech.” The petitioners are challenging that denial.
Massachusetts courts have interpreted protections afforded by the state Declaration of Rights to be at least as broad as those in the First Amendment to the U.S. Constitution. And pointing to the Citizens United case from 2010, the attorney general’s office said that “courts have uniformly held that the federal Constitution protects the contributions that Plaintiffs seek to limit with their proposed law.”
“Although Massachusetts courts have not specifically weighed in on the constitutionality of laws limiting campaign contributions made by an individual to a political committee or entity that makes independent expenditures to advocate for or against particular candidates without cooperation or consultation with those candidates, where the Supreme Judicial Court has recognized that courts in the Commonwealth interpreted the protections of free speech under the Declaration of Rights to be ‘comparable to those guaranteed by the First Amendment,’ … it is clear that this proposed law would violate the free speech rights afforded by the state constitution,” the AG’s office wrote in its letter declining to certify the petition.
Kafker seemed to agree, saying that “it seems to me like the AG is clearly right, that Citizens United created this sort of impenetrable First Amendment armor around expenditures.” But Harvard law professor and campaign finance reform advocate Lawrence Lessig, who represented the petitioners before the SJC on Monday, argued that Citizens United “addresses limitations on expenditures,” not on contributions.
“If we were before you with a petition that said we wanted to limit independent expenditures, this would be an easy case,” he said. “And the question that we’re teeing up, as has been teed up in other contexts, is whether contributions shall follow the same rule as the expenditure.”
Justice Dalila Argaez Wendlandt responded that “it’s more complicated, right, it’s contributions to the super PAC” and said that “every federal court that has looked at the issue has said that’s unconstitutional.”
Lessig agreed, but argued that “in none of those lower federal court cases did the court apply a principle of originalism — not one.” He said the “single most important fact about the United States Supreme Court over the past decade” is that originalism — or the idea that text of the Constitution should be interpreted based on the understanding of concepts when it was first adopted — has become the dominant lens through which the U.S. Constitution is interpreted.
“The AG has predicted that when this question gets to the Supreme Court, the Supreme Court will conclude the same as it did in Citizens United. That is a prediction. We’re giving you a reason to doubt that prediction, and in particular … it’s clear originalism would allow the regulation that this condition advances,” Lessig said.
The attorney general’s office, represented Monday by Anne Sterman, deputy chief of the AG’s government bureau, said Lessig’s arguments missed the mark.
“For better or worse, the attorney general’s role here is that of a gatekeeping role. She must assess the law as it exists and the facts as she can reasonably notice them at the time at which the proposed law is submitted to her for review. And as the plaintiffs here acknowledge, we’ve got the Citizens United decision and we have a chorus of federal appellate courts who have uniformly held that an inexorable conclusion from Citizens United is that the contribution limits proposed by this law violate the Constitution,” Sterman said. “Now, they may disagree with the reasoning of those cases, they may predict that the current Supreme Court would determine differently if presented with the issue, but the attorney general’s role in this procedure is not to predict, it’s not to make certification decisions based on the law as she wishes it would be or on her policy preferences, but to call the balls and strikes based on the law as it is.”
The AG’s office, in a filing with the court, said that the petitioners were effectively trying to get an “advisory opinion” from the SJC on an issue that they have not proved through signature gathering is one that has broad support among Massachusetts voters.
“[T]hat is precisely what the Plaintiffs are asking this Court to do: to weigh in on a constitutional issue even though they have not collected signatures in support of their proposed law,” the AG’s office wrote. “Plaintiffs’ litigate-first-signatures-later approach is contrary to the text, history, and structure of [the initiative petition law], and the Court should not indulge these tactics.”
But before the SJC would consider the constitutional arguments that the case presents, it first has to decide whether the case is even appropriate for it to weigh in on. The attorney general’s office argues that the challenge of its decision not to certify the petition is moot since the petitioners did not collect the signatures that it says were required by Dec. 5, 2022.
But the petitioners said they intend for their petition to go before the Legislature (and, without legislative action, the voters) in 2024 and that they filed their proposal with the attorney general’s office 14 months ahead of the August 2023 deadline for potential 2024 ballot questions. In that case, the signatures at issue would not need to be submitted until Dec. 6, 2023.
“Appellants now prosecute this appeal so that they may comply with the remaining deadlines by filing a certified petition with the Secretary on or after September 6, 2023, and then gathering the ‘remainder of the required signatures’ to file with the Secretary by December 6, 2023, so the Secretary might transmit the petition to the General Court in January 2024,” they wrote.
Justices who spoke Monday seemed to agree with the petitioners that the Dec. 5, 2022 signature deadline did not apply to the petition in question.
The justices of the SJC did not offer a timeline for their decision in the case Monday. The court says that most cases are generally decided within 130 days of oral arguments, which would be mid-June for the cases heard Monday.