Legal Advocates File Two Challenges In Support of Proposed Ballot Measure to Ban Super PACs in Massachusetts

Free Speech For People and Equal Citizens filed court challenges to the Massachusetts Attorney General’s refusal to certify a petition initiative that would end super PAC spending in Massachusetts elections.

BOSTON, MA (October 24, 2022) – On behalf of individual Massachusetts voters, Free Speech For People and Equal Citizens today filed two lawsuits in the Massachusetts Supreme Judicial Court for Suffolk County challenging the Massachusetts Attorney General’s rejection of initiative petition 22-01, entitled “Initiative Petition for a Law Relative to Limiting Political Contributions to Independent Expenditure PACs.” The proposed ballot measure, if passed, would limit contributions to independent expenditure PACs, commonly called “super PACs,” to $5,000 per individual, thereby effectively ending super PACs in Massachusetts. 

In September, the Massachusetts Attorney General’s Office refused to certify the plaintiffs’ petition for the 2024 ballot, ruling it would violate the constitutional right to free speech. Both lawsuits maintain that the Attorney General was mistaken. 

The lawsuit by Free Speech For People argues that the initiative would address quid pro quo corruption and the appearance of corruption created by contributions to super PACs and that the Supreme Court has allowed the regulation of such “corruption.” While some lower court decisions elsewhere in the country have wrongly extended U.S. Supreme Court decisions and forbidden the regulation of contributions to super PACs, none of those lower court decisions have jurisdiction over Massachusetts. 

The lawsuit by Equal Citizens maintains that under the now dominant doctrine of “originalism” in the United States Supreme Court, conservative justices would have no basis for blocking the regulation of super PACs. That means a clear majority of the Supreme Court would uphold the Massachusetts initiative, even if for different reasons.  

“Massachusetts citizens understand that large contributions to super PACs can easily give rise to quid pro quo corruption and the appearance of quid pro quo corruption,” said Courtney Hostetler, Senior Counsel for Free Speech For People. “A wealthy donor could tell a politician, ‘If you do X, I’ll write a huge check to your super PAC,’ or the politician could tell the donor, ‘If you give big to my super PAC, I’ll do X.’ When a wealthy funder contributes an exorbitant sum of money to a politician who does exactly what the funder wants, voters may not know what was spoken behind closed doors, but they recognize the appearance of quid pro quo corruption. Sensible dollar limits on contributions to these fundraising entities will dramatically reduce quid pro quo corruption and its appearance.” 

“If conservative justices on the Supreme Court believe that ‘originalism’ requires the reversal of Roe v. Wade and effectively unregulated access to guns, then they should at least apply that principle consistently, and recognize that no principled originalist could justify limiting a state’s freedom to control the corruption of the institutions of democracy,” said Lawrence Lessig, Roy L. Furman Professor of Law and Leadership at Harvard Law School, and founder of Equal Citizens. “We believe that a majority of the Supreme Court would uphold this regulation, even if for different reasons.” 

Super PACs are political action committees that make independent expenditures to advocate for or against particular candidates without cooperation or consultation with those candidates. In 2014, the Massachusetts legislature amended state law to remove limits on contributions to these committees. Under current law, there is no dollar limit on how much a donor can legally contribute to a super PAC. By restricting contributions to $5,000 per individual, the petition will end the influence of such PACs in Massachusetts elections.

Super PACs played an important role in Boston’s 2021 mayoral election. Although direct contributions to candidates were limited to $1,000 contributions to individual candidates, no such limits were placed on contributions to their independent expenditure PACs. This led to numerous $50,000 contributions from individuals, as well as one contribution of more than $1 million, to these super PACs. 

If the lawsuits are successful, Free Speech for People and Equal Citizens would be allowed to gather signatures next fall to get the initiative before the state legislature in 2024. If the legislature does not adopt the measure, the groups will gather more signatures to place the initiative on the fall 2024 ballot.

Read Free Speech For People’s complaint here.

Read Equal Citizens’ complaint here.  

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