1A Auto, Inc. v. Director of the Office of Campaign and Political Finance

NOTICE: All slip opinions and orders are subject to formal

revision and are superseded by the advance sheets and bound

volumes of the Official Reports. If you find a typographical

error or other formal error, please notify the Reporter of

Decisions, Supreme Judicial Court, John Adams Courthouse, 1

Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-

1030; SJCReporter@sjc.state.ma.us

SJC-12413

1A AUTO, INC., & another1 vs. DIRECTOR OF THE OFFICE OF

CAMPAIGN AND POLITICAL FINANCE.

Suffolk. March 6, 2018. - September 6, 2018.

Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, &

Kafker, JJ.

Elections, Political contributions. Constitutional Law, Freedom

of speech and press, Freedom of association, Equal

protection of laws.

Civil action commenced in the Superior Court Department on

February 24, 2015.

The case was heard by Paul D. Wilson, J., on motions for

summary judgment.

The Supreme Judicial Court granted an application for

direct appellate review.

James Manley, of Arizona (Gregory D. Cote also present) for

the plaintiffs.

Julia Kobick, Assistant Attorney General (William W.

Porter, Assistant Attorney General, also present) for the

defendant.

1 126 Self Storage, Inc.

2

Ben T. Clements, M. Patrick Moore, Jr., Ryan P. McManus,

John C. Bonifaz, Ronald A. Fein, & Shann M. Cleveland, for

Common Cause & another, amici curiae, submitted a brief.

GANTS, C.J. For more than a century, Massachusetts law,

like Federal law, see 52 U.S.C. § 30118(a) (2012 & Supp. II),

has prohibited business corporations from making contributions

to political candidates or their campaigns. See St. 1907,

c. 581. The plaintiffs here are business corporations who

challenge Massachusetts's ban on corporate contributions, G. L.

c. 55, § 8, claiming that it imposes an unconstitutional

restraint on their rights to free speech and association. The

corporations also claim that, because § 8 prohibits corporations

from making contributions but does not also prohibit other

entities -- such as unions and nonprofit organizations -- from

doing so, it denies them their right to equal protection under

the law. We affirm the Superior Court judge's grant of summary

judgment in favor of the defendant, the director of the Office

of Campaign and Political Finance (OCPF), on both claims.2

Background. 1. Limits on corporate political spending.

Laws limiting the political spending of corporations have a long

historical pedigree. The earliest such laws emerged more than a

century ago, as growing public concern over the influence of

2 We acknowledge the amicus brief submitted by Common Cause

and Free Speech for People.

3

corporations in politics led to widespread calls for regulation.

Federal Election Comm'n v. Beaumont, 539 U.S. 146, 152 (2003)

(Beaumont). See R.E. Mutch, Buying the Vote: A History of

Campaign Finance Reform 16-17, 33, 43-44 (2014). In 1905,

President Theodore Roosevelt urged Congress to take action,

recommending a total ban on corporate political contributions in

order to prevent "bribery and corruption in Federal elections."

40 Cong. Rec. S96 (Dec. 5, 1905). Congress responded in 1907 by

enacting the Tillman Act, 34 Stat. 864 (1907), which prohibited

"any corporation" from "mak[ing] a money contribution in

connection with any election to any political office."

The same year that Congress enacted the Tillman Act, the

Massachusetts Legislature enacted its own law prohibiting

corporations from making campaign contributions. See St. 1907,

c. 581, § 3.3 Over the next few decades, the Legislature further

refined this ban on corporate contributions, while integrating

it into its broader efforts to combat corruption in State

elections. See, e.g., St. 1913, c. 835, §§ 353, 356 ("Corrupt

Practices" section of "An Act to codify the laws relative to

primaries, caucuses and elections"); St. 1946, c. 537, § 10 ("An

3 The Massachusetts law initially prohibited only certain

corporations from making campaign contributions, St. 1907,

c. 581, § 3, but was soon amended to apply to all "business

corporation[s] incorporated under the laws of[] or doing

business in this commonwealth." St. 1908, c. 483, § 1.

4

Act relative to corrupt practices, election inquests and

violations of election laws"). In 2009, the Legislature

extended the ban to apply not only to traditional business

corporations but also to any "professional corporation,

partnership, [or] limited liability company partnership."

St. 2009, c. 28, § 33.

Massachusetts's current ban on corporate contributions,

G. L. c. 55, § 8, prohibits business corporations and other

profit-making entities from making contributions with respect to

State or local candidates. It states, in relevant part:

"[N]o business or professional corporation, partnership,

[or] limited liability company partnership under the laws

of or doing business in the commonwealth . . . shall

directly or indirectly give, pay, expend or contribute[]

any money or other valuable thing for the purpose of

aiding, promoting or preventing the nomination or election

of any person to public office, or aiding or promoting or

antagonizing the interest of any political party."

To understand what a business corporation may and may not

do to support a political candidate under current Massachusetts

law, we need to describe the different possible ways in which

money can be used to support a political candidate's campaign.

One way is to make contributions, in cash or things of value,

directly to the candidate or to a committee organized on the

candidate's behalf. See G. L. c. 55, § 1. A second way is to

establish and pay the administrative expenses of a political

action committee (PAC), which may then raise money from various

5

sources, and use that money to support a candidate's campaign.

See G. L. c. 55, §§ 1, 5. A third way is to make contributions

to a PAC. See G. L. c. 55, § 1. A fourth way is to make

"independent expenditures," which are expenditures made to

advocate for or against a candidate -- for example by purchasing

newspaper, radio, or television advertising praising the

candidate or criticizing his or her opponent -- that are not

made in cooperation with or in consultation with any candidate.

See id. A fifth way is to make contributions to independent

expenditure PACs, sometimes called "super PACs," which, unlike

ordinary PACs, may only make independent expenditures and may

not contribute to candidates. See G. L. c. 55, § 18A (d). See

also OCPF, Interpretive Bulletin, OCPF-IB-10-03 (Oct. 2010)

(rev. Jan. 2015); OCPF, Campaign Finance Activity by Political

Action Committees in Massachusetts, 2011 & 2012, at 12 (July

2013).

Under Massachusetts law, corporations may not make any

contributions to a candidate or to a candidate's committee, may

not establish or administer a PAC, and may not contribute to a

PAC that is not an independent expenditure PAC. See Op. Atty.

Gen. No. 10 (Nov. 6, 1980), in Rep. A.G., Pub. Doc. No. 12 at

118-120 (1981). See also OCPF, Advisory Opinion, OCPF-AO-00-05

(Apr. 21, 2000); OCPF, Advisory Opinion, OCPF-AO-98-18 (July 31,

1998). Corporations may, however, make unlimited "independent

6

expenditures," subject to certain disclosure requirements. See

G. L. c. 55, §§ 18A, 18C, 18G. They may also make unlimited

contributions to independent expenditure PACs. See 970 Code

Mass. Regs. § 2.17 (2018). See also OCPF, Interpretive

Bulletin, OCPF-IB-10-03, supra.

To illustrate, if a Massachusetts corporation wants to

support a certain John Hancock for Massachusetts governor, it

may not contribute money directly to Hancock or to Hancock's

campaign committee. Nor may it establish and administer a PAC

to solicit contributions for Hancock, or contribute to a PAC

that in turn makes campaign contributions to Hancock. The

corporation may, however, spend as much money as it likes

advocating on behalf of Hancock, as long as it does so

independently from him and his campaign. For example, it may,

on its own initiative and without coordinating with Hancock, pay

for a television advertisement urging viewers to vote for

Hancock. It may also contribute to an independent expenditure

PAC, which, provided it does not coordinate with Hancock, may

spend money promoting him to the public.

2. The present action. The plaintiffs in this case are

two separate family-owned corporations doing business in

Massachusetts. 1A Auto, Inc., is an automobile parts retailer

in Pepperell. 126 Self Storage, Inc., operates a self-storage

facility in Ashland. Under § 8, the plaintiffs are barred from

7

making political contributions that they would otherwise choose

to make.

The plaintiffs filed suit against the director of OCPF in

his official capacity, seeking declaratory and injunctive relief

against the continued enforcement of § 8. The plaintiffs

alleged that, in banning corporate contributions, § 8 violates

their free speech and association rights guaranteed under the

First Amendment to the United States Constitution and arts. 16

and 19 of the Massachusetts Declaration of Rights. The

plaintiffs also alleged that § 8 violates their right to equal

protection of the law under the Fourteenth Amendment to the

United States Constitution and art. 1 of the Massachusetts

Declaration of Rights, because it prohibits corporations from

making political contributions without also prohibiting other

entities, like unions and nonprofit organizations, from doing

so.

The plaintiffs moved for a preliminary injunction against

the enforcement of § 8. A Superior Court judge denied the

motion, finding that the plaintiffs were unable to show a

likelihood of success on the merits. Following discovery, the

parties filed cross motions for summary judgment. Another

Superior Court judge denied the plaintiffs' motion and granted

OCPF's motion. As to the plaintiffs' free speech and

association claim, the judge noted that in Beaumont, 539 U.S. at

8

154-155, 162-163, the United States Supreme Court rejected a

constitutional challenge to the Federal ban on corporate

contributions, holding that it was justified by the government's

important interest in preventing corruption and the appearance

of corruption. The judge concluded that, under that controlling

precedent, § 8 was not unconstitutional under the First

Amendment because its ban on corporate contributions is "closely

drawn to serve the State's interest in preventing corruption or

the appearance of corruption." He also concluded that arts. 16

and 19 of the Massachusetts Declaration of Rights grant a

corporation no greater rights to make political contributions

than the First Amendment. As to the plaintiffs' equal

protection claim, the judge concluded that, because the

plaintiffs had failed to demonstrate that corporations and

unions are similarly situated, § 8 did not violate the equal

protection clause of the Fourteenth Amendment or its parallel in

art. 1. The plaintiffs appealed from the judge's grant of

summary judgment, and we allowed their application for direct

appellate review.

Discussion. We review a decision to grant summary judgment

de novo. See Twomey v. Middleborough, 468 Mass. 260, 267

(2014). "[W]here both parties have moved for summary judgment,

the evidence is viewed in the light most favorable to the party

9

against whom judgment is to enter" (citation omitted), in this

case, the plaintiffs. Id.

1. Free speech and association claim. The corporations

claim that § 8 violates their rights of free speech and

association under both the First Amendment and arts. 16 and 19.

In interpreting the United States Constitution, we are of course

bound by the decisions of the United States Supreme Court, and

we "can neither add to nor subtract from the mandates of the

United States Constitution." Commonwealth v. Cote, 386 Mass.

354, 360-361 (1982), quoting North Carolina v. Butler, 441 U.S.

369, 376 (1979). We are, however, "free to interpret [S]tate

constitutional provisions to accord greater protection to

individual rights than do similar provisions of the United

States Constitution." Goodridge v. Department of Pub. Health,

440 Mass. 309, 328 (2003), quoting Arizona v. Evans, 514 U.S. 1,

8 (1995). We must therefore first consider whether § 8 is

constitutional under the First Amendment, as interpreted by the

Supreme Court. If it is, we must then consider whether our

Declaration of Rights is more protective of corporate

contributions than the First Amendment and, if so, whether § 8

complies with that more protective constitutional standard.

a. First Amendment. "Discussion of public issues and

debate on the qualifications of candidates are integral to the

operation of the system of government established in our

10

Constitution." Buckley v. Valeo, 424 U.S. 1, 14 (1976) (per

curiam). For this reason, "[t]he First Amendment affords the

broadest protection to such political expression." Id. And

because, in today's world, the communication of political views

and opinions -- whether by distributing pamphlets, or through

mass media -- almost inevitably costs money, see id. at 19, laws

that limit political spending must be recognized as "operat[ing]

in an area of the most fundamental First Amendment activities,"

id. at 14. At the same time, such limits are also an integral

feature of campaign finance laws in this State and across the

nation, designed to diminish the risk of government corruption,

as well as the appearance of such corruption.

Political contributions from corporations are prohibited

not only under Massachusetts law, G. L. c. 55, § 8, but also

under Federal law, 52 U.S.C. § 30118(a), as well as under the

laws of twenty-one other States.4 See National Conference of

State Legislatures, State Limits on Contributions to Candidates,

2017-2018 Election Cycle (June 27,2017). In Beaumont, 539 U.S.

4 See Alaska Stat. § 15.13.074(f); Arizona Rev. Stat. § 16-

916(A); Ark. Code Ann. § 7-6-203; Colo. Rev. Stat. § 1-45-103.7;

Conn. Gen. Stat. § 9-613; Iowa Code § 68A.503; Ky. Rev. Stat.

Ann. §§ 121.025, 121.035; Mich. Comp. Laws § 169.254; Minn.

Stat. § 211B.15; Mo. Const. art. VIII, § 23.3(3)(a); Mont. Code

Ann. § 13-35-227; N.C. Gen. Stat. Ann. § 163A-1430; N.D. Cent.

Code § 16.1-08.1-03.5; Ohio Rev. Code Ann. § 3599.03; Okla.

Stat. tit. 21, § 187.2; 25 Pa. Cons. Stat. § 3253; R.I. Gen.

Laws § 17-25-10.1(h); Tex. Elec. Code Ann. § 253.094; W. Va.

Code § 3-8-8; Wis. Stat. § 11.1112; Wyo. Stat. Ann. § 22-25-102.

11

at 149, the Supreme Court rejected a constitutional challenge to

the Federal ban, which prohibits corporations from making

contributions to candidates running for Federal office. In

doing so, the Court relied on the long-standing distinction --

first articulated in Buckley, 424 U.S. at 19-21 -- between laws

that limit independent expenditures and laws that limit

contributions. As the Court stated, independent expenditure

limits are subject to strict scrutiny, whereas contribution

limits are reviewed under a less rigorous standard, and will be

upheld as long as they are "'closely drawn' to match a

'sufficiently important interest.'" Beaumont, 539 U.S. at 162,

quoting Nixon v. Shrink Missouri Gov't PAC, 528 U.S. 377, 387-

388 (2000). This is because, as the Court first explained in

Buckley, contribution limits encroach to a lesser extent on

First Amendment interests than independent expenditure limits:

whereas independent expenditures are themselves a form of

political expression, lying "at the core . . . of the First

Amendment freedoms," Buckley, 424 U.S. at 39, quoting Williams

v. Rhodes, 393 U.S. 23, 32 (1968), a contribution is merely "a

general expression of support for the candidate and his views,

[which] does not communicate the underlying basis for the

support." Buckley, 424 U.S. at 21. "[C]ontributions may result

in political expression if spent by a candidate . . . to present

views to the voters, [but] the transformation of contributions

12

into political debate involves speech by someone other than the

contributor." Id. Thus, although limits on independent

expenditures "necessarily reduce[] the quantity of expression by

restricting the number of issues discussed, the depth of their

exploration, and the size of the audience reached," id. at 19,

limits on contributions "entail[] only a marginal restriction

upon the contributor's ability to engage in free communication."

Id. at 20-21.

This core distinction between independent expenditures and

contributions has become a "basic premise" of the Court's

jurisprudence concerning campaign finance laws. Beaumont, 539

U.S. at 161. Indeed, in the four decades since Buckley was

decided, the Court has declared unconstitutional almost every

independent expenditure limit that has come before it. See,

e.g., Colorado Republican Fed. Campaign Comm. v. Federal

Election Comm'n, 518 U.S. 604, 608 (1996) (Federal limit on

independent expenditures by political parties); Federal Election

Comm'n v. Massachusetts Citizens for Life, Inc., 479 U.S. 238,

263 (1986) (Federal ban on corporate independent expenditures as

applied to nonprofit corporation); Federal Election Comm'n v.

National Conservative Political Action Comm., 470 U.S. 480, 501

(1985) (Federal limit on independent expenditures by political

committees); First Nat'l Bank of Boston v. Bellotti, 435 U.S.

765, 795 (1978) (Massachusetts's ban on corporate independent

13

expenditures in connection with initiative petition). In

contrast, the Court has upheld most contribution limits. See,

e.g., Nixon, 528 U.S. at 381-382 (Missouri's contribution

limits); California Med. Ass'n v. Federal Election Comm'n, 453

U.S. 182, 184-185 (1981) (Federal limit on contributions to

multicandidate political committees). Cf. Federal Election

Comm'n v. Colorado Republican Fed. Campaign Comm., 533 U.S. 431,

447, 465 (2001) (Colorado Republican) (upholding Federal

coordinated expenditure limits by analogy to contribution

limits).5

The Court in Beaumont, 539 U.S. at 161, recognizing that

contributions, unlike independent expenditures, "lie closer to

the edges than to the core of political expression," held that

the Federal ban on corporate contributions was subject only to

"relatively complaisant review under the First Amendment."

Applying this standard of review, the Court concluded that the

Federal ban served four important government interests: First,

the ban operated to "preven[t] corruption [and] the appearance

of corruption." Id. at 154, quoting National Conservative

5 One notable exception to this pattern was the Court's

decision in Austin v. Michigan State Chamber of Commerce, 494

U.S. 652, 654-655 (1990), where the Court upheld a Michigan

statute prohibiting corporations from making independent

expenditures in connection with State elections. The Court

later overruled this decision in Citizens United v. Federal

Election Comm'n, 558 U.S. 310, 365 (2010).

14

Political Action Comm., 470 U.S. at 496-497. Second,

prohibiting corporations from making contributions to candidates

also protected the interests of dissenting shareholders who did

not support the same candidates. Beaumont, supra. Third, a ban

on corporate contributions would prevent individuals from using

corporations as vehicles to circumvent valid limits on

individual contributions. Id. at 155. And fourth, the ban

served to "counter . . . the misuse of corporate advantages,"

combatting not only quid pro quo corruption but also the risk

that corporations, with their unique ability to accumulate

wealth, would thereby wield "undue influence [over] an

officeholder's judgment." Id. at 155-156, quoting Colorado

Republican, 533 U.S. at 440-441. Having concluded that the ban

served sufficiently important interests, the Court also

concluded that the ban was "closely drawn" to meet those

interests, noting that it was not "a complete ban" on corporate

political expression, because Federal law still permitted

corporations to participate in the electoral process by

establishing, administering, and soliciting contributions

through a PAC. Beaumont, supra at 162-163.

Even though the Supreme Court declared in Beaumont, id. at

163, that an absolute ban on corporate contributions is

constitutional under the First Amendment, the plaintiffs urge us

nevertheless to rule that § 8 violates that amendment. "We are

15

not free," however, "to construe the First Amendment as creating

constitutional protection broader than that established by the

Supreme Court." Matter of Roche, 381 Mass. 624, 631 n.8 (1980).

It is a well-established principle that, where a Supreme Court

precedent "has direct application in a case," lower courts must

follow that precedent, even if it were "to rest on reasons

rejected in some other line of decisions." Rodriguez de Quijas

v. Shearson/American Express, Inc., 490 U.S. 477, 484 (1989).

Although the landscape of campaign finance law has changed

significantly since Beaumont -- most notably because of the

Supreme Court's decision in Citizens United v. Federal Election

Comm'n, 558 U.S. 310 (2010) -- Beaumont remains "the law of the

land until the Supreme Court decides otherwise," and we are

bound to follow it. Commonwealth v. Runyan, 456 Mass. 230, 234

(2010), overruled on another ground, Commonwealth v. Reyes, 464

Mass. 245, 256 (2013).

In Citizens United, 558 U.S. at 365, the Court declared

unconstitutional a Federal law that banned corporations from

making independent expenditures, emphasizing that, under the

First Amendment, the government may not restrict speech "on the

basis of the speaker's corporate identity." Applying strict

scrutiny, id. at 340, the Court concluded that the law was

unconstitutional because it did not serve a sufficiently

compelling interest. Id. at 365. In doing so, the Court

16

overruled earlier decisions where it had taken a broader view of

the government interests that could support restrictions on

corporate political spending. Id. at 365-366. The Court

declared that the only sufficiently compelling interest that

could justify a restriction on political spending was the

government's interest in preventing corruption or the appearance

of corruption.6 See id. at 356-362. Moreover, the Court defined

6 As earlier stated, in Federal Election Comm'n v. Beaumont,

539 U.S. 146, 154-156 (2003), the Court identified four

important government interests that supported the ban on

corporate political contributions. In Citizens United, 558 U.S.

at 361-362, the Court repudiated two of these interests,

declaring that the government could not restrict corporate

political spending in order to protect dissenting shareholders,

or in order to combat the distorting influence that

corporations, with their accumulated wealth, could wield over

the political process, id. at 348, quoting Austin, 494 U.S. at

660. See Citizens United, 558 U.S. at 348-356. The Court

reaffirmed, however, that the government may restrict corporate

political spending in furtherance of its interest in preventing

corruption or the appearance of corruption. Id. at 356-357.

The Court did not speak of the fourth important government

interest identified in Beaumont -- that is, the government's

interest in preventing individuals from circumventing valid

limits on individual contributions by funneling the

contributions through a corporation. Beaumont, 539 U.S. at 155.

We do not interpret the Court's silence as a repudiation of this

important government interest, especially where it is so closely

related to the government interest in preventing corruption and

the appearance of corruption. See Ognibene v. Parkes, 671 F.3d

174, 195 n.21 (2d Cir.), cert. denied, 567 U.S. 935 (2012)

("Citizens United . . . does not disturb the validity of the

anti-circumvention interest"); Thalheimer v. San Diego, 645 F.3d

1109, 1124-1125 (9th Cir. 2011) ("[T]he anti-circumvention

interest is part of the familiar anti-corruption

rationale . . . . [N]othing in the explicit holdings or broad

reasoning of Citizens United . . . invalidates the anti-

circumvention interest in the context of limitations on direct

17

corruption narrowly, limiting it to "quid pro quo corruption" --

that is, the exchange of "dollars for political favors" -- and

rejected the view that corruption could also take the form of

disproportionate influence over or access to elected officials.

Id. at 359, quoting National Conservative Political Action

Comm., 470 U.S. at 497.

The Court in Citizens United did not, however, overrule its

decision in Beaumont. Indeed, the majority opinion did not even

cite Beaumont. Moreover, Citizens United left much of the

reasoning in Beaumont undisturbed. In Citizens United, 558 U.S.

at 345, 356-359, the Court reaffirmed the key distinction

between contributions and independent expenditures, emphasizing

that contributions present a special risk of quid pro quo

corruption because, unlike independent expenditures, they are

coordinated with candidates. See id. at 357. For that reason,

the Court recognized that contribution limits are "an accepted

means to prevent quid pro quo corruption." Id. at 359. The

Court also made clear that its analysis in Citizens United was

specific to independent expenditure limits; it specifically did

not "reconsider whether contribution limits should be subjected

to rigorous First Amendment scrutiny." Id. See McCutcheon v.

candidate contributions"). Cf. McCutcheon v. Federal Election

Comm'n, 572 U.S. 185, 218-221(2014) (plurality opinion)

(government has interest in preventing circumvention of

contribution limits).

18

Federal Election Comm'n, 572 U.S. 185, 196-197 (2014) (plurality

opinion) (reiterating different standards of review for

contribution limits and independent expenditure limits).

To our knowledge, every Federal circuit court that has

considered a constitutional challenge to laws banning corporate

contributions since Citizens United has applied the controlling

precedent in Beaumont and concluded that the laws were

constitutional under the First Amendment. See, e.g., Iowa Right

to Life Comm., Inc. v. Tooker, 717 F.3d 576, 601 (8th Cir.

2013), cert. denied, 572 U.S. 1046 (2014); Minnesota Citizens

Concerned for Life, Inc. v. Swanson, 692 F.3d 864, 877-880 (8th

Cir. 2012); United States v. Danielczyk, 683 F.3d 611, 615-619

(4th Cir. 2012), cert. denied, 568 U.S. 1193 (2013); Ognibene v.

Parkes, 671 F.3d 174, 194-197 (2d Cir. 2011), cert. denied, 567

U.S. 935 (2012); Thalheimer v. San Diego, 645 F.3d 1109, 1124-

1126 (9th Cir. 2011). Cf. Wagner v. Federal Election Comm'n,

793 F.3d 1, 5-32 (D.C. Cir. 2015), cert. denied sub nom. Miller

v. Federal Election Comm'n, 136 S. Ct. 895 (2016) (upholding ban

on contributions by government contractors); Yamada v. Snipes,

786 F.3d 1182, 1204-1207 (9th Cir. 2015), cert. denied sub nom.

Yamada v. Shoda, 136 S. Ct. 569 (2015) (same); Green Party of

Conn. v. Garfield, 616 F.3d 189, 198-205 (2d Cir. 2010) (same).

The plaintiffs contend that, even if we recognize Beaumont

as controlling precedent (which we do), and apply its "closely

19

drawn" standard of review (which we will), we should nonetheless

conclude that § 8 violates their First Amendment rights. In

support of this contention, the plaintiffs proffer two

arguments.

First, they argue that § 8 does not advance a sufficiently

important interest, because OCPF has failed to demonstrate that

the ban on corporate political contributions is necessary to

prevent quid pro corruption or the appearance of quid pro quo

corruption. They contend that, to demonstrate the

constitutionality of such a ban, OCPF would need to present

evidence of corporate contributions leading to quid pro quo

corruption in Massachusetts. But imposing such an evidentiary

burden on OCPF would be both unrealistic and unnecessary.

It would be unrealistic because corporate political

contributions have been banned under Massachusetts law for over

a century. Cf. Wagner, 793 F.3d at 14 ("Of course, we would not

expect to find -- and we cannot demand -- continuing evidence of

large-scale quid pro quo corruption or coercion involving

federal contractor contributions [where] such contributions have

been banned since 1940"). We cannot demand that OCPF provide

evidence of what would happen in a "counterfactual world" where

§ 8 does not exist. McCutcheon, 572 U.S. at 219 (plurality

opinion). See Colorado Republican, 533 U.S. at 457 (recognizing

"difficulty of mustering evidence to support long-enforced

20

statutes" because "there is no recent experience" without them).

Cf. Burson v. Freeman, 504 U.S. 191, 208 (1992) (plurality

opinion) ("The fact that these laws have been in effect for a

long period of time . . . makes it difficult" to demonstrate

"what would happen without them"). All we can ask is "whether

experience under the present law confirms a serious threat of

abuse." McCutcheon, supra, quoting Colorado Republican, supra.

And here, experience confirms that, if corporate

contributions were allowed, there would be a serious threat of

quid pro quo corruption. In Buckley, 424 U.S. at 27, the

Supreme Court noted that, although actual instances of quid pro

quo corruption can be difficult to detect, "the deeply

disturbing" political scandals of the 1970s "demonstrate[d] that

the problem is not an illusory one." Sadly, the risk of quid

pro quo corruption is no less illusory in Massachusetts. In

just the last decade, several Massachusetts politicians have

been convicted of crimes stemming from bribery schemes intended

to benefit corporations. See, e.g., United States v. McDonough,

727 F.3d 143, 147 (1st Cir. 2013), cert. denied, 571 U.S. 1177

(2014); United States v. Turner, 684 F.3d 244, 246 (1st Cir.),

cert. denied, 568 U.S. 1018 (2012); United States v. Wilkerson,

675 F.3d 120, 121 (1st Cir. 2012). In addition, the record here

shows that OCPF has prosecuted several cases involving

corporations that sought to circumvent § 8 by making

21

contributions through individual employees, who were later

reimbursed with corporate funds. Such schemes indicate that, if

not for § 8, the inverse also would be possible, with

individuals circumventing the limits on their own political

contributions "by diverting money through . . . corporation[s]."

Beaumont, 539 U.S. at 155. See id. ("experience 'demonstrates

how candidates, donors, and parties test the limits of the

current law, and . . . how contribution limits would be eroded

if inducement to circumvent them were enhanced'" [citation

omitted]).7

It would also be unrealistic for a court to require the

Legislature to wait for evidence of widespread quid pro quo

corruption resulting from corporate contributions before taking

steps to prevent such corruption. "There is no reason to

require the [L]egislature to experience the very problem it

fears before taking appropriate prophylactic measures."

Ognibene, 671 F.3d at 188.

7 Under G. L. c. 55, an individual may not contribute more

than (1) a total of $1,000 per year to a candidate or

candidate's committee, (2) an aggregate of $5,000 per year to a

political party or political committees associated with such

party, and (3) $500 per year to a political action committee

(PAC), other than an independent expenditure PAC. G. L. c. 55,

§ 7A (a) (1)-(3); 970 Code Mass. Regs. § 1.04(12) (2018). There

is no limitation on the amount that may be contributed to an

independent expenditure PAC. See 970 Code Mass. Regs. § 2.17(4)

(2018).

22

Apart from being unrealistic, requiring OCPF to provide

recent examples of quid pro corruption resulting from corporate

contributions is also unnecessary because we need not insist on

evidence of actual corruption when the government also has an

important interest in preventing the appearance of corruption.

See id. ("[T]o require evidence of actual scandals for

contribution limits would conflate the interest in preventing

actual corruption with the separate interest in preventing

apparent corruption"). See also Buckley, 424 U.S. at 27 ("the

impact of the appearance of corruption" is "[o]f almost equal

concern as the danger of actual quid pro quo arrangements"). It

requires "no great leap of reasoning" for us to infer that a ban

on corporate contributions would counter at least the appearance

of quid pro quo corruption. Green Party of Conn., 616 F.3d at

200. If corporate contributions were permitted, every time a

political decision was made that helped or hurt a corporation's

interests, members of the public might wonder if the

corporation's political contributions -- or lack thereof --

played a role in the decision.

Both history and common sense have demonstrated that, when

corporations make contributions to political candidates, there

is a risk of corruption, both actual and perceived. See Florida

Bar v. Went For It, Inc., 515 U.S. 618, 628 (1995), quoting

Burson, 504 U.S. at 211 (speech restrictions can be justified

23

"based solely on history, consensus, and 'simple common sense'"

[citation omitted]). We conclude that § 8 advances the

"sufficiently important interest" in preventing quid pro quo

corruption and its appearance, and in preventing the

circumvention of individual contribution limits through

corporations.

The plaintiffs' second argument is that, even if § 8 does

advance those important interests, it is not closely drawn for

that purpose. The plaintiffs claim that § 8 is at once both

overinclusive and underinclusive. It is overinclusive, they

contend, because it is an outright ban on corporate

contributions, when there are other, less restrictive options --

such as a contribution ceiling, or disclosure requirements --

that could also further those important interests. The Supreme

Court rejected a similar argument in Beaumont, 539 U.S. at 162-

163, concluding that the equally comprehensive Federal ban on

corporate contributions was nevertheless closely drawn.

The plaintiffs seek to distinguish this case from Beaumont,

arguing that in Beaumont, id. at 163, the Court was able to

reach this conclusion only because Federal law "allow[s]

corporations 'to establish and pay the administrative expenses

of [PACs]'" (citation omitted), whereas under Massachusetts law

corporations are prohibited from doing so. The plaintiffs

contend that, in Beaumont, the Court required as an "essential

24

constitutional minimum" that corporations be allowed to

establish and administer a PAC. But in Beaumont, supra at 162-

163, the Court noted the existence of a corporate-controlled

"PAC option," not to suggest that it was a constitutionally

mandated minimum, but rather to illustrate that corporations

still had meaningful opportunities to participate in the

political process.

Importantly, Beaumont was decided seven years before

Citizens United, when Federal law still prohibited corporations

from making independent expenditures. See Beaumont, supra. at

149. In Beaumont, the Court singled out the PAC option because,

at that time, it was one of the most important outlets for

corporate speech. What the Court emphasized was that, because

such outlets existed, the ban on corporate contributions was not

"a complete ban" on all political expression by corporations.

Id. at 162.

Here, similarly, § 8 is not "a complete ban" on corporate

political expression. Beaumont, supra. Although Massachusetts

law does not permit corporations to establish and administer a

PAC, it has, since Citizens United, permitted corporations to

engage in a significant form of political expression that was

not allowed when Beaumont was decided -- that is, to make

unlimited independent expenditures as well as unlimited

contributions to independent expenditure PACs. See G. L. c. 55,

25

§§ 18A, 18C, 18G. See also St. 2014, c. 210, §§ 4, 20-21, 25

(amending G. L. c. 55, §§ 1, 18A, 18C, 18G). And predictably,

OCPF records indicate that independent expenditures in

connection with State elections have risen sharply since the ban

was lifted. See OCPF Reports, Post Election 2016, at 2 (2016)

(independent expenditures in 2016 State election approximately

fifty per cent higher than in 2012 State election). Where

corporations in Massachusetts are free to spend as much money as

they would like independently advocating for their preferred

candidates, or to contribute to an independent expenditure PAC,

we cannot conclude that § 8 denies corporations the opportunity

meaningfully to participate in the political process. See

Thalheimer, 645 F.3d at 1125 ("[the] ability to directly

contribute $500 to a candidate pales in significance to [the

contributor's] ability to make unlimited independent

expenditures . . . supporting or opposing candidates").

Nor are we persuaded that § 8 must be invalidated because

the government has the less restrictive option of regulating

through disclosure requirements. In Buckley, 424 U.S. at 28,

the Court defended Federal contribution limits against similar

arguments, concluding that "Congress was surely entitled to

conclude that disclosure was only a partial measure," and that

contribution limits were "a necessary legislative concomitant to

deal with the reality or appearance of corruption." Here, too,

26

the Legislature was entitled to conclude that disclosure on its

own would be insufficient to meet the government's

anticorruption interest.

Having argued that § 8 is not closely drawn, and is

therefore unconstitutional, because it restricts too much

speech, the plaintiffs also argue that it is not closely drawn,

and is therefore unconstitutional, because it restricts too

little. They contend that § 8 is underinclusive, because,

unlike the Federal law upheld in Beaumont, 539 U.S. at 157,

which barred both corporations and unions from making

contributions, § 8 applies to corporations but not to unions.

The plaintiffs suggest that, because § 8 does not also regulate

unions, it is a "discriminatory contribution ban[]" that

regulates only certain speakers and thereby impermissibly

restricts speech based on viewpoint. See Citizens United, 558

U.S. at 340 ("Speech restrictions based on the identity of the

speaker are all too often simply a means to control content").

As the Supreme Court has recognized, "[i]t is always

somewhat counterintuitive to argue that a law violates the First

Amendment by abridging too little speech." Williams-Yulee v.

Florida Bar, 135 S. Ct. 1656, 1668 (2015). The government is

not required to regulate speech to the constitutionally

permitted maximum; "the First Amendment imposes no freestanding

'underinclusiveness limitation.'" Id., quoting R.A.V. v. St.

27

Paul, 505 U.S. 377, 387 (1992). See Wagner, 793 F.3d at 29 ("a

regulation is not fatally underinclusive . . . simply because an

alternative regulation, which would restrict more speech or the

speech of more people, could be more effective" [citation

omitted]). Rather, we consider whether a restriction on speech

is underinclusive only to the extent that such

underinclusiveness "reveal[s] that a law does not actually

advance" a sufficiently important interest, Williams-Yulee,

supra, citing Smith v. Daily Mail Publ. Co., 443 U.S. 97, 104-

105 (1979), or "raise[s] 'doubts about whether the government is

in fact pursuing the interest it invokes, rather than

disfavoring a particular speaker or viewpoint.'" Williams-

Yulee, supra, quoting Brown v. Entertainment Merchants Ass'n,

564 U.S. 786, 802 (2011). We have already concluded that § 8

advances an important anticorruption interest. Thus, § 8 cannot

violate the First Amendment for underinclusiveness unless the

failure to include other entities within its scope demonstrates

that preventing corruption and the appearance of corruption is a

mere pretext for the prohibition against political

contributions, and that its true purpose is to silence the

political speech of business corporations, professional

corporations, partnerships, and limited liability partnerships,

while favoring the political viewpoints of those entities that

fall outside its scope.

28

There is nothing in the record suggesting that the

Legislature acted with this impermissible intent. Without

citing any legislative history, the plaintiffs appear to claim

that the true legislative purpose in enacting § 8 and its

subsequent amendments was to favor labor unions at the expense

of corporations. But there is no evidence to support this

claim. Unions are not the only entities excluded from the scope

of § 8; nonprofit corporations and unincorporated trade

associations are also not included. If the Legislature intended

§ 8 to accomplish viewpoint discrimination against businesses,

one would certainly have expected it to include trade

associations within its prohibition. Here, the Legislature has

an important interest in preventing corruption and its

appearance, which it seeks to advance through § 8. The fact

that § 8 focuses on corruption stemming from corporate

contributions -- "rather than every conceivable instance" of

corruption -- does not call this into doubt. Ognibene, 671 F.3d

at 191. See, e.g., Wagner, 793 F.3d at 32 (Federal law banning

contributions from individual government contractors but not

from other entities or individuals with government contracts is

not "fatally underinclusive"); Ognibene, supra at 191-192

(municipal law limiting contributions from individuals or

entities "doing business" with government but not from certain

labor organizations is not underinclusive). After all, the

29

Legislature "need not address all aspects of a problem in one

fell swoop; policymakers may focus on their most pressing

concerns." Williams-Yulee, 135 S. Ct. at 1668. We decline to

declare § 8 fatally underinclusive merely "because it might have

gone farther than it did." Buckley, 424 U.S. at 105, quoting

Roschen v. Ward, 279 U.S. 337, 339 (1929).8

8 Justice Kafker's concurrence takes issue with our

discussion of underinclusiveness, apparently because we fail to

adequately address issues that he concedes we "[u]ltimately

. . . cannot base our decision on." Post at . The

concurrence faults us for failing "to explore the complexities

of Supreme Court case law regarding differential treatment of

business corporations in the context of direct contributions,"

post at , and in particular faults us for failing to discuss

the Supreme Court's decision in Austin, 494 U.S. at 652, post at

.

The reason we do not rely on Austin is quite simple:

Austin has been overruled. In Citizens United, 558 U.S. at 365,

the Supreme Court expressly stated: "Austin should be and now

is overruled." The concurrence seems to think that there is

some uncertainty on this front, contending that -- because it is

"far from clear" whether the reasoning in Austin may still be

relied on, post at -- we must take Austin into account. But

if the Supreme Court had intended to overrule only certain

portions of Austin, it would have done so. In fact, in Citizens

United, 558 U.S. at 365-366, the Court specifically overruled

only portions of its decision in McConnell v. Federal Election

Comm'n, 540 U.S. 93 (2003), but overruled Austin without any

such qualification. It may very well be that some of the

reasoning in Austin -- a case about independent expenditure

limits -- remains viable in the context of contribution limits,

as the concurrence suggests. Post at . But to say so would

be speculative, and we decline to base our decision on

speculation.

Rather than rely on a precedent that has been expressly

overruled, we follow the approach that the Supreme Court has

taken more recently, in Williams-Yulee v. Florida Bar, 135 S.

30

For all of these reasons, we conclude that § 8 is

constitutional under the First Amendment.

b. Arts. 16 and 19 of the Massachusetts Declaration of

Rights. Having concluded that § 8 is constitutional under the

First Amendment of the United States Constitution, we must now

consider whether it is also constitutional under arts. 16 and 19

of the Massachusetts Declaration of Rights.9 As earlier stated,

as the final arbiter regarding the interpretation of our State

constitution, this Court has "the inherent authority" to declare

Ct. 1656, 1668-1670 (2015), when analyzing underinclusiveness

under the First Amendment. Again, because the First Amendment

does not require the government to restrict as much speech as it

permissibly can, we consider whether a restriction is

underinclusive only to the extent that it raises doubts about

whether the restriction does in fact advance a sufficiently

important interest or indicates that the government is acting

with an impermissible purpose. Id. at 1668. The concurrence

seems to take the view that the "differential treatment" of

corporations and unions, post at , may render § 8

impermissibly underinclusive. But "differential treatment" on

its own does not render a law unconstitutional under the First

Amendment. See, e.g., Wagner v. Federal Election Comm'n, 793

F.3d 1, 32 (D.C. Cir. 2015), cert. denied, Miller v. Federal

Election Comm'n, 136 S. Ct. 895 (2016); Ognibene, 671 F.3d at

191-192. The question is whether the exclusion of entities such

as unions, nonprofit corporations, and unincorporated trade

associations from its scope suggests that § 8 does not advance a

legitimate anticorruption interest, but instead serves the

illegitimate purpose of discriminating against the viewpoints of

corporations. For the reasons already stated, we conclude that

it does not.

9 Article 16 of the Massachusetts Declaration of Rights

provides, in relevant part, that "[t]he right of free speech

shall not be abridged." Article 19 provides that "[t]he people

have a right, in an orderly and peaceable manner, to assemble to

consult upon the common good."

31

that our State Constitution affords broader protection to

individual rights than does the United States Constitution.

Libertarian Ass'n of Mass. v. Secretary of the Commonwealth, 462

Mass. 538, 558 (2012). This does not mean, however, that we

must "exercise [that authority] at every turn." Id. at 559.

Historically, we have interpreted the protections of free speech

and association under our Declaration of Rights to be

"comparable to those guaranteed by the First Amendment."

Opinion of the Justices, 418 Mass. 1201, 1212 (1994). We see no

reason to conclude that art. 16 or 19 gives corporations greater

rights of political participation than they enjoy under the

First Amendment to the United States Constitution. We therefore

conclude that § 8 is constitutional under arts. 16 and 19 of the

Massachusetts Declaration of Rights.

2. Equal protection claim. The plaintiffs claim that § 8

violates their rights to equal protection for the same reasons

they claim that § 8 was underinclusive under the First

Amendment: because it prohibits corporations from making

contributions, while allowing unions and nonprofit organizations

to do so. But this time, the plaintiffs seek to avail

themselves of a more rigorous standard of review, contending

that -- although under the First Amendment, § 8 need only be

"closely drawn" to advance a "sufficiently important interest,"

Beaumont, 539 U.S. at 162 -- under equal protection principles,

32

it is subject to strict scrutiny, and therefore must be

"narrowly tailored" to serve a "compelling interest." See

Citizens United, 558 U.S. at 340. In essence, the plaintiffs

seek, by reframing their First Amendment challenge, to effect an

end run around the Supreme Court's well-established distinction

between independent expenditure limits, which trigger strict

scrutiny, and contribution limits, which do not.

In Wagner, 793 F.3d at 32, the United States Court of

Appeals for the District of Columbia Circuit rejected precisely

this kind of "doctrinal gambit." The court there considered a

comparable equal protection claim in a case where individual

Federal government contractors challenged the constitutionality

of a Federal law that barred them from making Federal campaign

contributions while they negotiate or perform Federal contracts.

Id. at 3, 32-33. After rejecting the plaintiffs' First

Amendment challenge, the court addressed the plaintiffs' claim

that the Federal law violated their rights under the equal

protection clause of the Fifth Amendment because it applied to

individual government contractors but not to other, "similarly

situated persons," such as regular government employees. Id. at

32. The court declined to apply strict scrutiny to the Federal

law, explaining:

"Although the Court has on occasion applied strict scrutiny

in examining equal protection challenges in cases involving

First Amendment rights, it has done so only when a First

33

Amendment analysis would itself have required such

scrutiny. There is consequently no case in which the

Supreme Court has employed strict scrutiny to analyze a

contribution restriction under equal protection principles.

. . . This will not be the first. . . .

"[A]lthough equal protection analysis focuses upon the

validity of the classification rather than the speech

restriction, 'the critical questions asked are the same.'

We believe that the same level of scrutiny . . . is

therefore appropriate in both contexts. . . .

"[I]n a case like this one, in which there is no doubt that

the interests invoked in support of the challenged

legislative classification are legitimate, and no doubt

that the classification was designed to vindicate those

interests rather than disfavor a particular speaker or

viewpoint, the challengers 'can fare no better under the

Equal Protection Clause than under the First Amendment

itself'" (footnote and citations omitted).

Id. at 32-33.

We adopt the court's reasoning here. For equal protection

purposes, strict scrutiny is warranted only where a law

implicates a suspect class or burdens a fundamental right. See

Goodridge, 440 Mass. at 330. Corporations are not a suspect

class. And, although the rights to free speech and association

are fundamental, see Buckley, 424 U.S. at 14, the Supreme Court

has already explicitly stated that, because contributions "lie

closer to the edges than to the core of political expression,"

contribution limits do not sufficiently burden those rights to

warrant strict scrutiny. Beaumont, 539 U.S. at 161. See

Buckley, supra at 25. Thus, where the challenged law is a limit

on contributions, as here, and where that law does not implicate

34

a suspect class, we follow the Supreme Court's precedents and

apply the familiar "closely drawn" standard, regardless of

whether the challenge sounds under the First Amendment or under

equal protection principles. And, under this standard, we

conclude that § 8 is constitutional under equal protection

principles, for the same reasons that it is constitutional under

the First Amendment.10

10Because it is not necessary to our decision, we do not

decide whether business corporations and the other profit-making

entities within the scope of § 8 are similarly situated to or

treated differently from other entities, such as unions or

nonprofit organizations, that are outside its scope. See Matter

of Corliss, 424 Mass. 1005, 1006 (1997) ("One indispensable

element of a valid equal protection claim is that individuals

who are similarly situated have been treated differently"). We

note that, under current Massachusetts law, it is not clear to

what extent unions and nonprofit organizations are free to make

political contributions.

This is because, separate from its ban on corporate

contributions, G. L. c. 55 also regulates certain kinds of

organizations known as "political committees." As defined in

G. L. c. 55, § 1, a "political committee" includes any

"organization or other group of persons . . . which receives

contributions or makes expenditures for the purpose of

influencing the nomination or election of a candidate, or

candidates . . . ." If, under this broad definition, a union or

nonprofit organization that makes even a nominal political

contribution is considered a political committee, such entities

effectively would be prohibited from making any contribution

because, once characterized as a political committee, they would

be required not only to meet burdensome disclosure requirements,

but also to dedicate their resources exclusively to their

political purpose, meaning that they could no longer serve their

intended purposes as a union or nonprofit organization. See 970

Code Mass. Regs. § 2.06(6)(b) (2018) ("No political committee .

. . may pay or expend money or anything of value unless such

35

We therefore conclude that § 8 does not violate the equal

protection clause of the Fourteenth Amendment. Nor does it

violate the plaintiffs' entitlement to equal protection under

art. 1. See Dickerson v. Attorney Gen., 396 Mass. 740, 743

(1986) ("For the purpose of equal protection analysis, our

standard of review under . . . the Massachusetts Declaration of

transaction will enhance the political future of the candidate

or principle on whose behalf the committee was organized").

In 1988, OCPF issued guidance in the form of an

interpretive bulletin, explaining that a nonpolitical

organization -- that is, an organization that does not solicit

or receive funds for any political purpose -- will not be

considered a political committee as long as it does not make

"more than incidental" political expenditures, defined as those

"exceed[ing], in the aggregate, . . . either $15,000 or 10

percent of [the] organization's gross revenues . . . , whichever

is less" (emphasis omitted). OCPF, Interpretive Bulletin, OCPF-

IB-88-01 (Sep. 1988) (rev. May 9, 2014). Thus, under OCPF's

interpretation, a union or nonprofit organization can spend up

to $15,000 or ten per cent of its gross revenues, whichever is

less, without triggering the regulations applicable to political

committees.

An administrative bulletin, as opposed to a regulation that

has benefited from the full rulemaking process, with opportunity

for notice and comment, see G. L. c. 55, §§ 2-3, is entitled to

substantial deference but it is not a promulgated regulation

that carries the force of law. See Global NAPs, Inc. v.

Awiszus, 457 Mass. 489, 496-497 (2010) ("although

[administrative agency's guidelines] are entitled to substantial

deference, they do not carry the force of law"). The question

whether OCPF's interpretive bulletin accurately interprets c. 55

has not, to our knowledge, been addressed in a court of law.

Because it is not necessary to our decision, because it was not

addressed by the judge or briefed by the parties, and because a

ruling would have substantial consequence on entities that are

not parties to this action, we decline to address it here.

36

Rights is the same as under the Fourteenth Amendment to the

Federal Constitution").

Conclusion. For the reasons stated, the order denying the

plaintiffs' motion for summary judgment and allowing OCPF's

cross-motion for summary judgment is affirmed.

So ordered.

BUDD, J. (concurring). I agree with the court's holding.

However, I write separately to describe more broadly the

interest in "limit[ing] 'the appearance of corruption stemming

from public awareness of the opportunities for abuse inherent in

a regime of large . . . financial contributions' to particular

candidates." McCutcheon v. Federal Election Comm'n, 572 U.S.

185, 207 (2014) (plurality opinion), quoting Buckley v. Valeo,

424 U.S. 1, 27 (1976). In Massachusetts, this interest is

rooted in the Declaration of Rights of the Constitution of the

Commonwealth and supports the Commonwealth's statutory scheme of

campaign contribution regulation as a whole. Under art. 5 of

the Declaration of Rights, the Commonwealth has a constitutional

interest in ensuring that its elected representatives are

"substitutes and agents" of the people who act only in their

interest.

1. Role of a representative under the Constitution of the

Commonwealth. A basic principle of our Constitution (and of a

republican form of government) is that representatives are to be

chosen by the people to represent them and their interests. See

Part II of the Constitution of the Commonwealth. The people,

through the Constitution, established a legislative department

comprised of legislators who are elected by the qualified voters

inhabiting the districts that they represent. See id. at c. 1,

§§ 2,3. The people also established an executive power

2

exercised by the Governor. Id. at c. 2. "The Governor is

emphatically the Representative of the whole People, being

chosen not by one Town or County, but by the People at large."

An Address of the Convention for Framing a new Constitution for

the State of Massachusetts Bay, to their Constituents, 13

(1780).

The Declaration of Rights further clarifies that the

relationship between representatives and the people is an agency

relationship. Art. 5 provides as a right:

"All power residing originally in the people, and being

derived from them, the several magistrates and officers of

government, vested with authority, whether legislative,

executive, or judicial, are their substitutes and agents,

and are at all times accountable to them."

See Opinion of the Justices, 160 Mass. 586, 594 (1894) (opinion

of Holmes, J.) ("confidence is put in [the Legislature] as an

agent . . . of its principal[, the people]").

The core of the relationship between an agent and his or

her principal is a duty of loyalty that the former owes the

latter: the law "demands that the agent shall work with an eye

single to the interest of his principal. It prohibits him from

receiving any compensation but his commission, and forbids him

from acting adversely to his principal, either for himself or

for others." McKinley v. Williams, 74 F. 94, 95 (8th Cir.

1896). See Attorney Gen. v. Henry, 262 Mass. 127, 132 (1928).

Under art. 5, all governmental officials in the Commonwealth, as

3

agents of the people, are bound to "work with an eye single to

the interests" of their principal, the public.1 McKinley, supra

at 95.

1 Article 5 of the Massachusetts Declaration of Rights may

recognize two valid principals whose interests a representative

may advance: a representative's constituents and the people of

the Commonwealth at large. That the Constitution may intend

representatives to be agents of both is clarified by theories of

representation debated at the time that the 1780 Constitution

was drafted.

In the Eighteenth Century, members of the British

Parliament, once elected, were generally considered not to be

agents of their constituencies, but representatives of the

entire nation. William Blackstone explained that "every member,

though chosen by one particular district, when elected and

returned serves for the whole realm. For the end of his coming

thither is not particular, but general; not barely to advantage

his constituents, but the common wealth" (emphasis in original).

1 W. Blackstone, Commentaries *155. Arthur Onslow, who served

as the Speaker of the House of Commons from 1728-1761, explained

that "every Member is equally a Representative of the whole

(within which, by our particular constitution, is included a

Representative, not only of those who are electors, but of all

the other subjects of the Crown of Great Britain at home, and in

every part of the British empire, except the Peers of Great

Britain) has, as I understand, been the constant notion and

language of Parliament." J. Hatsell, Precedents of Proceedings

in the House of Commons 47, note (1781). This theory of

Representation justified Parliament's imposition of taxes and

other laws on the colonies before the American Revolution. R.

Luce, Legislative Principles, The History and Theory of

Lawmaking by Representative Government 438 (1930) (Luce). Under

the theory, a "British subject in Massachusetts Bay or Virginia

was represented in Parliament just as much as if he were living

in London. The accident of voting or not voting had nothing to

do with the question." Id.

Massachusetts revolutionaries, such as Otis and the

Adamses, rejected this theory, id.; art. 5 expresses that

rejection. Although the article certainly does not eliminate a

representative's responsibilities to the entire Commonwealth of

4

2. Campaigns for elected office. Over the past century,

the cost of running a feasible campaign for elected office, even

for local positions, has increased dramatically. See Deeley,

Campaign Finance Reform, 36 Harv. J. on Legis. 547, 550-551

(1999); R. Luce, Legislative Principles, The History and Theory

of Lawmaking by Representative Government, 423-425 (1930). Most

officials rely on campaign contributions to raise revenue in

order to run a campaign. This system of financing generates a

discrete category of principals, that is, a donor class,2

separate and distinct from "the people." See art. 5; Bates v.

Director of Office of Campaign & Political Fin., 436 Mass. 144,

Massachusetts, I believe the Massachusetts Constitution does

require representatives to balance this responsibility with a

consideration of and duty to advance the best interests (and

perhaps expressed needs) of his or her constituents. See art.

5. See also art. 19 of the Massachusetts Declaration of Rights

(people have right to instruct representatives); Bresler,

Rediscovering the Right to Instruct Legislators, 26 New Eng. L.

Rev. 355, 360 (1991). Contrast arts. 5 and 19 with, for

example, the French Constitution of 1795, which stated: "The

members of the legislative body are not representatives of the

departments which have elected them, but of the whole nation,

and no specific instruction shall be given them." Luce, supra

at 445.

2 Donors making donations of one hundred dollars or more in

the period before the 1996 election made up less than one per

cent of the Commonwealth's eligible voters. Bates v. Office of

Campaign & Political Fin., 436 Mass. 144, 165 n.28 (2002). The

corporate plaintiffs in this case, of course, cannot be

considered qualified voters at all. See art. 3 of the

Amendments to the Constitution of the Commonwealth, as amended

(setting forth voter qualifications). See also art. 8 of the

Declaration of Rights (establishing elections as primary form of

representative accountability).

5

165-166 (2002). Thus, the campaign finance system has created

incentives for representatives to act not simply with the

interests of the public in mind, but instead with an eye toward

balancing the interests of the donors and the public, which may

at times be divergent.3

3. General Laws c. 55. The prohibition on corporate

campaign contributions set forth in G. L. c. 55, § 8, is one

part of a broader scheme of statutes limiting and regulating

campaign contributions set forth in that chapter. We have long

held that some rights established by the Constitution may

contemplate "suitable and reasonable regulations, not calculated

to defeat or impair [that] right[,] . . . but rather to

3 Take, for example, the comment of a congressman in 2017,

who, in reference to a bill being considered in Congress,

commented to members of the press: "My donors are basically

saying, 'Get it done or don't ever call me again.'" GOP

Lawmakers: Donors are pushing me to get tax reform done, The

Hill (Nov. 7, 2017). See Here's one White House hopeful who

wants to get big money out of politics, Reuters (April 18, 2015)

(statement of Senator Lindsey Graham) ("We've got to figure out

a way to fix this mess, because basically 50 people are running

the whole show"); Michele Bachmann: The Newsmax Interview,

Newsmax (June 26, 2011) (statement of Congresswoman Michele

Bachmann) (describing "the corrupt paradigm that has become

Washington, D.C., whereby votes continually are bought rather

than representatives voting the will of their constituents . . .

. That's the voice that's been missing at the table in

Washington, D.C. -- the people's voice has been missing"); In

Political Money Game, the Year of Big Loopholes, N.Y. Times

(Dec. 26, 1996) (statement of Congressman Barney Frank) ("We are

the only people in the world required by law to take large

amounts of money from strangers and then act as if it has no

effect on our behavior").

6

facilitate and secure the exercise of the right." Capen v.

Foster, 12 Pick. 485, 492 (1832). Article 5 guarantees the

people a right to a republic in which their representatives are

their substitutes and agents. To the extent that the lack of

campaign finance regulation results in a system of government

where representatives are increasingly forced to "work with an

eye [not] single to the interest" of the public, McKinley, 74 F.

at 95, campaign finance regulation and the limits on campaign

contributions set forth in G. L. c. 55 may be appropriate to

preserve the representative democracy contemplated by the

framers of the Constitution ratified by the people of the

Commonwealth in 1780.4

4 Cf. United States v. International Union United Auto.,

Aircraft and Agric. Implement Workers of Am. (UAW-CIO), 352 U.S.

567, 577-578 (1957), quoting 86 Cong. Rec. 2720 (statement of

U.S. Senator in support of limits on campaign contributions)

("We all know that money is the chief source of corruption. We

all know that large contributions to political campaigns . . .

put the political party under obligation to the large

contributors, who demand pay in the way of legislation").

Even assuming that voters, as principals, may consent to a

representative that has a clearly disclosed conflict of interest

by electing such an individual, see 1 S. Livermore, A Treatise

on the Law of Principal and Agent 33 (1818) (principals

responsible for "consequences of making . . . [a deficient

agency] appointment"), voters would need a choice in order to

consent. If the nature of the problem is systemic, without

regulation, voters are deprived of the ability to choose a

candidate that does not have such a conflict and may typically

be faced with a monopoly of choices that do not work with an eye

single to their interests and the interests of the Commonwealth.

See id. at 25 (without consent of principal there can be no

7

The prevention of criminal bribery alone does not

sufficiently identify the Commonwealth's interest in its

campaign contribution regulatory scheme. "[L]aws making

criminal the giving and taking of bribes deal only with the most

blatant and specific attempts of those with money to influence

governmental action." Wagner v. Federal Election Comm'n, 793

F.3d 1, 15 (D.C. Cir. 2015), cert. denied sub nom. Miller v.

Federal Election Comm'n, 136 S. Ct. 895 (2016), quoting Buckley,

424 U.S. at 27-28. Thus, I believe that the Commonwealth's

campaign finance regulation may be justified not only to prevent

corruption in the form of criminal bribery or the appearance of

criminal bribery, but also to prevent the appearance of

corruption by preserving the agency relationship between

representatives and the people set forth under art. 5.5

appointment of agent; there must be "serious and free use of

[the consent] power[]"). See also Bates, 436 Mass. at 165 n.28

(discussing frequency of uncontested elections).

5 "[G]overnment regulation may not target the general

gratitude a candidate may feel toward those who support him or

his allies, or the political access such support may afford.

'Ingratiation and access . . . are not corruption.'" McCutcheon

v. Federal Election Comm'n, 572 U.S. 185, 192 (2014) (plurality

opinion), quoting Citizens United v. Federal Election Comm'n,

558 U.S. 310, 360 (2010). Of course, agents of corporations

such as the plaintiffs may meet with policymakers to express

their legitimate ideas and concerns regarding legislation. This

freedom of expression helps policymakers refine and solidify

what they believe is good policy. However, the principal-agency

relationship set forth in art. 5 is broken not when a legislator

is grateful to his supporters or because of access, but when an

8

The statute at issue in this case facilitates and helps

secure the agency relationship between the people and their

representatives as principals and agents, to take a step in the

direction of preserving the constitutional directive that when

elected officials act, their primary motivations are the

interests of their principals, i.e., their constituents and the

Commonwealth.6

The statutory scheme of G. L. c. 55, which provides for the

disclosure and regulation of campaign contributions, is

derivative of principles in the Massachusetts Constitution

regarding the structure of our representative democracy and

rights of its people. However, any encroachment on the rights

of the plaintiffs under the First Amendment to the United States

Constitution, even one that occurs by operation of the State

Constitution, must be supported by a "sufficiently important

elected official takes actions that he otherwise would not have

because he feels obligated to advance the interests of his

donors in particular, not his constituents or the Commonwealth

has a whole.

6 I agree with the court that it is not necessary to

address, in the context of this case, whether the Office of

Campaign and Political Finance (OCPF)'s Interpretive Bulletin

OCPF-IB-88-01 (Sept. 1988, rev. May 9, 2014) accurately

interprets G. L. c. 55. Ante at note 10. I note, however, the

current guidance appears to permit nonpolitical nonprofit

organizations to contribute as much as $15,000 in one year

directly to a single candidate. OCPF Interpretive Bulletin,

supra at 4. I believe that when OCPF interprets G. L. c. 55, it

should do so in light of art. 5.

9

interest."7 McCutcheon, 572 U.S. at 197 (plurality opinion),

quoting Buckley, 424 U.S. at 25. The Commonwealth's interests

in facilitating and securing the art. 5 right to representatives

who are "substitutes and agents" of the people is "a

sufficiently important concern" and "critical . . . if

confidence in the system of representative Government is not to

be eroded to a disastrous extent." Buckley, supra at 27,

quoting United States Civil Serv. Comm'n v. National Ass'n of

Letter Carriers, AFL-CIO, 413 U.S. 548, 565 (1973). The

Commonwealth may limit the serious burden that, in many

instances, campaign contributions impose on the agency

relationship between the public and their representatives

because that burdened agency relationship highlights "the

appearance of corruption stemming from public awareness of the

opportunities for abuse inherent in a regime of large individual

financial contributions' to particular candidates." McCutcheon,

572 U.S. at 207 (plurality opinion), quoting Buckley, 424 U.S.

at 27.8 Indeed, the interest concerns the form and character of

our representative democracy itself.

7 However, principles similar to those contained in art. 5

may be implicit in the United States Constitution. See Brown &

Martin, Rhetoric and Reality: Testing the Harm of Campaign

Spending, 90 N.Y.U. L. Rev. 1066, 1071-1076 (2015).

8 Additionally, the Supreme Court has increasingly

recognized that the Federal Constitution's grant of broad

10

Corporations such as 1A Auto, Inc., and 126 Self Storage,

Inc., have free speech rights to educate and inform public

discussion about issues of concern to them. See Citizens United

v. Federal Election Comm'n, 558 U.S. 310, 342 (2010); First

Nat'l Bank of Boston v. Bellotti, 435 U.S. 765, 795 (1978).

Both entities have a First Amendment right to make unlimited

independent expenditures throughout the Commonwealth to

influence directly the thoughts and opinions of the voters and

the public at large. Citizens United, supra at 365-366. See

G. L. c. 55, § 18A; 970 Code Mass. Regs. §§ 1.04(12) n.1, 2.17

(2018). However, that right does not extend so far as to

autonomy to States to structure their governments and adopt

rules that make electoral democracy functional:

"Outside the strictures of the Supremacy Clause, States

retain broad autonomy in structuring their governments

. . . . Indeed, the Constitution provides that all powers

not specifically granted to the Federal Government are

reserved to the States or citizens. . . . More

specifically, 'the Framers of the [Federal] Constitution

intended the States to keep for themselves, as provided in

the Tenth Amendment, the power to regulate elections.'"

Shelby County, Ala. v. Holder, 570 U.S. 529, 543 (2013), quoting

Gregory v. Ashcroft, 501 U.S. 452, 461-462 (1991). As in voting

rights cases rooted in the First Amendment, perhaps in the

regulation of campaign finance, to preserve the proper function

of our democratic institutions, "[c]ommon sense, as well as

constitutional law, compels the conclusion that government must

play an active role[;] . . . 'as a practical matter, there must

be substantial regulation of elections if they are to be fair

and honest and if some sort of order, rather than chaos, is to

accompany the democratic process.'" Burdick v. Takushi, 504

U.S. 428, 433 (1992), quoting Storer v. Brown, 415 U.S. 724, 730

(1974).

11

provide funds directly to candidates that cause those candidates

to "work with an eye [not] single to the interest" of the

people. McKinley, 74 F. at 95.9

6. Conclusion. In Thoughts on Government (1776), John

Adams explained:

"The principal difficulty lies, and the greatest care

should be employed, in constituting this representative

assembly. It should be in miniature an exact portrait of

the people at large. It should think, feel, reason, and

act like them. That it may be the interest of this

assembly to do strict justice at all times, it should be an

equal representation, or, in other words, equal interests

among the people should have equal interests in it. Great

care should be taken to effect this, and to prevent unfair,

partial, and corrupt elections. Such regulations, however,

may be better made in times of greater tranquility than the

present; and they will spring up themselves naturally, when

all the powers of government come to be in the hands of the

people's friends. At present, it will be safest to proceed

in all established modes, to which the people have been

familiarized by habit."

These principles support the court's conclusion in this case.

9 Furthermore, "it may be that, in some circumstances,

'large independent expenditures pose [some of] the same dangers

. . . as do large contributions.'" Federal Election Comm'n v.

Wisconsin Right To Life, Inc., 551 U.S. 449, 478 (2007) (opinion

of Roberts, C.J.), quoting Buckley v. Valeo, 424 U.S. 1, 45

(1976). See also Buckley, supra at 46 ("independent advocacy

. . . does not presently appear to pose dangers . . . comparable

to those identified with large campaign contributions" [emphasis

added]).

KAFKER, J. (concurring). I write separately because the

court does not adequately address the issue whether the law

prohibiting corporate contributions is impermissibly

underinclusive under the First Amendment for failing to prohibit

contributions by other entities. In Austin v. Michigan Chamber

of Commerce, 494 U.S. 652, 665-666 (1990), the United States

Supreme Court held that treating corporations and nonprofits

differently from unions in the context of independent

expenditures was constitutionally permissible. The Supreme

Court has since overruled Austin, see Citizens United v. Federal

Election Comm'n, 558 U.S. 310, 365 (2010), and it remains

unclear whether, and to what extent, the reasoning relied on in

Austin and other cases focusing on the aggregation of capital

and its effect on politics may still apply in the context of

direct campaign contributions.1

1 The court, in addressing this concurrence, attempts to

minimize the issue of differential treatment. Here, however,

"[t]he underinclusiveness of the statute is self-

evident." First Nat'l Bank of Boston v. Bellotti, 435 U.S. 765,

793 (1978). General Laws, c. 55, § 8, purports to target

corruption and the appearance of corruption but, in application,

singles out a subset of entities for regulation. Although the

court attempts to dismiss the significance of such differential

treatment, "[i]n the First Amendment context, fit

matters." McCutcheon v. Federal Election Comm'n, 572 U.S. 185,

218 (2014) (plurality opinion). It is not enough for the

government to advance a compelling interest -- we must still

assess "the fit between the stated governmental objective and

the means selected to achieve that objective." Id. at

199. Yet, nowhere does the court explain why regulating

2

In my view, in the post-Citizens United world, the Supreme

Court clearly still emphasizes the importance of preventing quid

pro quo corruption or the appearance of such corruption in the

context of direct contributions, see McCutcheon v. Federal

Election Comm'n, 572 U.S. 185, 206-208 (2014) (plurality

opinion), and also defers to evenhanded legislative regulation

in this area. See Buckley v. Valeo, 424 U.S. 1, 31 (1976) (per

curiam). A uniform ban on contributions from business

corporations, nonprofits, and unions to prevent corruption or

the appearance of corruption would thus appear to be

corporations differently from other organizations is closely

drawn to the State's interest in preventing corruption. The

reasons provided by the majority apply equally to unions and

nonprofits. As discussed, the rationales that would have most

obviously supported this disparate treatment were articulated in

Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 665-666

(1990).

The court states that it does not bother to examine Austin

for the "simple" reason that Austin has been overruled. Yet,

the court conveniently fails to mention that Austin, not Federal

Election Comm'n v. Beaumont, 539 U.S. 146 (2003), remains the

only Supreme Court case to squarely address the issue of

disparate corporate treatment in the area of political finance.

Looking solely at the court's opinion, one might assume that

Beaumont addressed a statutory scheme mirroring to our own. It

did not. Beaumont, supra at 154, involved a direct contribution

ban that applied uniformly to unions and corporations. Austin,

supra, however, examined a campaign finance statute that

regulated corporations differently from unions. Precisely

because Austin was overruled, it is all the more important to

closely examine the Supreme Court's jurisprudence to determine

whether differential treatment of business corporations may

still be permissible in the area of campaign contributions, or

if it has been foreclosed by Citizens United v. Federal Election

Comm'n, 558 U.S. 310, 365 (2010).

3

constitutional under existing precedent. See Federal Election

Comm'n v. Beaumont, 539 U.S. 146, 157-159 (2003).

The Supreme Court has, however, rejected treating business

corporations differently simply based on the substantial

aggregations of wealth amassed by corporations or the advantages

of the corporate structure, at least in the context of

independent expenditures. See Citizens United, 558 U.S. at 350-

351. I assume at least some of the same reasoning would apply

to contributions as well, although this is less clear. Campaign

finance restrictions that stem from a desire to even the

political playing field by reducing corporate power would

certainly be impermissible. McCutcheon, 572 U.S. at 207

(plurality opinion) ("it is not an acceptable governmental

objective to level the playing field" [quotations and citation

omitted]). The Supreme Court also vigilantly protects against

viewpoint discrimination. See Citizens United, supra at 340.

Differential treatment of business corporations from other

entities must then be closely drawn to the permissible State

interest in preventing quid pro quo corruption and the

appearance of quid pro quo corruption, rather that these

impermissible State interests. Separating out legitimate

concerns about corruption from the apparently illegitimate

concerns discussed in Austin to justify differential treatment,

however, remains difficult.

4

In the instant case, the Superior Court judge provided

relevant context to the enactment of Massachusetts's first

campaign finance law and the possible motivation behind its

passage. As he explained:

"While [laws banning federal officers from requesting,

giving, or receiving political contributions from other

officers or employees] made it more 'difficult and risky'

to 'shake down' government officials to help finance

political campaigns, the laws also increased office-

seekers' reliance on wealthy corporations and individuals

for campaign contributions, which created its own set of

problems. . . . During the 1904 presidential race,

Republican candidate Theodore Roosevelt was accused of

accepting large donations from corporations that expected

special treatment if he was elected. . . . Although

Roosevelt denied these assertions and won the election, he

was mindful of the accusations and, in 1905, during his

first address to Congress, he took aim at corporations,

recommending a ban on all corporate contributions, to

prevent 'bribery and corruption in Federal

elections.' . . . President Roosevelt asserted that 'both

the National and the several State Legislatures' should

'forbid any officer of a corporation from using the money

of the corporation in or about any election,' in order to

'effective[ly] . . . stop[] the evils aimed at in corrupt

practices acts.' . . . Congress answered President

Roosevelt's call in 1907 with the enactment of the Tillman

Act, which banned corporations from 'mak[ing] a money

contribution in connection with any election to any

political office.' . . .

"During the same year that Congress passed the Tillman

Act, the Massachusetts Legislature enacted a state law

banning certain corporations from 'pay[ing] or

contribut[ing] in order to aid, promote, or prevent the

nomination or election of any person to public office, or

in order to aid, promote or antagonize the interests of any

political party, or to influence or affect the vote on any

question submitted to the voters.' . . . Thereafter, in

1908, the Legislature passed 'An Act to prohibit the making

of political contributions by business corporations,' which

extended the ban to all 'business corporation[s]

5

incorporated under the laws of, or doing business in this

commonwealth'" (citations omitted).

Given the age of the Massachusetts statute and its apparent

origins in a nationwide push against the influence of big

business in politics, it is difficult to discern whether the

basis for the statute's differential treatment of business

corporations rests on grounds considered legitimate,

illegitimate, or a combination of both. It is my sense that it

reflects some of the same combination of reasons articulated in

Austin. The question then becomes whether a statute singling

out business corporations for a ban on direct campaign

contributions for such a combination of reasons remains

permissible. I ultimately concur in the judgment because it is

not clear to me how much of the reasoning of Austin and other

Supreme Court cases such as Beaumont and Federal Election Comm'n

v. National Right to Work Comm., 459 U.S. 197, 210 (1982)

(NRWC), remain good law and how deferential the Supreme Court

will be in the future to legislative choices regarding concerns

about corruption even when they combine with disfavored

considerations toward business corporations.

I believe the court's opinion does not adequately address

the issue of underinclusion. The court focuses primarily on

concerns about quid pro quo corruption stemming from business

corporations to conclude that a ban on business corporation

6

contributions is constitutionally permissible. Ante at - .

See Beaumont, 539 U.S. at 163. The ultimate issue, however, is

not simply whether contributions by business corporations may be

limited due to concerns about quid pro quo corruption or the

appearance of such corruption, but whether a statutory scheme

that bans such contributions while simultaneously permitting

contributions by other organizations, including well-endowed

nonprofit corporations and unions, is closely drawn to the

State's interest in preventing corruption and its appearance.

To justify treating business corporations differently from

unions and well-endowed nonprofits, including single issue

advocacy entities that are intensely involved in political

campaigns, the court cites selective examples of corporate

bribery scandals in Massachusetts. See ante at . Most of

the examples, however, involve personal payments put directly

into the pockets of elected officials rather than election-

related activity or campaign contributions. The court also

notes that the record includes several instances of corporate

campaign finance violations, but one could just as easily

provide selective examples of union and nonprofit violations.

Indeed, based simply on the record before us, unions and

nonprofits have also sought to circumvent campaign finance laws.

In 2013, a union political action committee (PAC) failed to

disclose $178,000 in expenditures in violation of State

7

disclosure requirements. In 2014, the American Federation of

Teachers transferred money to a PAC through a nonprofit

organization, which then made independent expenditures in the

Boston mayoral race, in order to illegally disguise the source

of the contributions. The same year, the Office of Campaign and

Political Finance investigated another union PAC that had failed

to accurately report independent expenditures and direct

contributions made to candidates. Would these few examples

sufficiently justify a prohibition on direct contributions by

unions or nonprofits, but not business corporations? Of course

not. But under the court's reasoning, a few such anecdotes

appear sufficient to uphold such a statutory scheme.

The court further references a "long historical pedigree"

of laws restricting the electoral participation of corporations.

But the court fails to mention that laws restricting union

participation in the electoral process enjoy a long-standing

pedigree as well for many of the same reasons. See United

States v. International Union United Auto., Aircraft & Agric.

Implement Workers of Am., 352 U.S. 567, 570-584 (1957) (UAW)

(providing detailed history of Federal campaign finance laws as

they apply to unions and the concerns that led to their

enactment); NRWC, 459 U.S. at 208-209. But see Citizens United,

558 U.S. at 363 (characterizing UAW as providing a "flawed

historical account of campaign finance laws"). Indeed, many

8

States ban direct contributions from both corporations and

unions,2 while only a handful of States ban contributions from

corporations alone.3

Rather than focusing on selective examples of campaign

finance violations, I believe it is necessary to explore the

complexities of Supreme Court case law regarding differential

treatment of business corporations in the context of direct

contributions, something the court has not done.

The appropriate level of scrutiny for evaluating a campaign

finance law turns on the "importance of the political activity

at issue to effective speech or political association"

(quotations and citation omitted). Beaumont, 539 U.S. at 161.

Restrictions on direct contributions "lie closer to the edges"

of political speech than restrictions on independent

expenditures. Id. Thus, while laws restricting independent

expenditures receive strict scrutiny, laws restricting direct

contributions need only be "closely drawn" to a sufficiently

2 See Alaska Stat. § 15.13.074(f); Ariz. Rev. Stat. § 16-

916(a); Ark. Const. art. 19, § 28; Colo. Const. art. XXVIII,

§ 3; Conn. Gen. Stat. §§ 9-601, 9-613, 9-614; Mich. Comp. Laws

§ 169.254; Mo. Const. art. VIII, § 23.1; Mont. Code Ann. § 13-

35-227; N.C. Gen. Stat. Ann. § 163A-1430; N.D. Cent. Code

§§ 16.1-08.1-01; 16.1-08.1-03.3, 16.1-08.1-.03.5(1); Ohio Rev.

Code Ann. § 3599.03; Okla. Stat. tit. 21, § 187.2; 25 Pa. Cons.

Stat. § 3253; R.I. Gen. Laws. § 17-25-10.1; Tex. Elec. Code Ann.

§ 253.094; Wis. Stat. § 11.1112; Wyo. Stat. Ann. § 22-25-102(a).

3 See Iowa Code §§ 68A.102(17), 68A.503(1); Ky. Rev. Stat.

Ann. §§ 121.025; Minn. Stat. § 211B.15; W. Va. Code § 3-8-8.

9

important government interest. See Buckley, 424 U.S. at 24-25;

McCutcheon, 572 U.S. at 197 (plurality opinion). Although

campaign finance jurisprudence is in a "state of flux" post-

Citizens United, the long-standing distinction between

independent expenditures and direct contributions in this regard

remains good law. See Green Party of Conn. v. Garfield, 616

F.3d 189, 199 (2d Cir. 2010); McCutcheon, supra at 196-199

(plurality opinion).

When evaluating laws that restrict direct contributions, as

here, courts must determine (1) whether the government has

advanced a sufficiently important interest; and (2) whether the

law is "closely drawn" to achieve that interest. See Buckley,

424 U.S. at 23-25; McCutcheon, 572 U.S. at 196-199 (plurality

opinion). A law is not closely drawn to a stated interest if it

is impermissibly over or underinclusive. See, e.g., First Nat'l

Bank of Boston v. Bellotti, 435 U.S. 765, 793 (1978) ("the

exclusion of Massachusetts business trusts, real estate

investment trusts, labor unions, and other associations

undermines the plausibility of the State's purported concern for

the persons who happen to be shareholders in the banks and

corporations covered by [the law at issue]").

There is no doubt that the government has a sufficiently

important interest in preventing corruption and the appearance

of corruption and that direct contributions to political

10

candidates implicate that important interest.4 See McCutcheon,

572 U.S. at 206-207 (plurality opinion); Citizens United, 558

U.S. at 356. Further, statutes that categorically or

evenhandedly ban large contributions from organizations remain

constitutional under existing Supreme Court precedent. See

Beaumont, 539 U.S. at 163. The difficult issue is differential

4 The permissible interest in preventing corruption is more

precisely an interest in preventing quid pro quo corruption.

See McCutcheon, 572 U.S. 185, 207 (2014) (plurality opinion)

("Congress may target only a specific type of corruption --

'quid pro quo' corruption"). Quid pro quo corruption "captures

the notion of a direct exchange of an official act for

money. . . . 'The hallmark of corruption is the financial quid

pro quo: dollars for political favors.'" Id. at 1441

(plurality opinion), quoting Federal Election Comm'n v. National

Conservative Political Action Comm., 470 U.S. 480, 497 (1985).

See Buckley v. Valeo, 424 U.S. 1, 26-27 (1976) (per curiam) ("To

the extent that large contributions are given to secure a

political quid quo pro from current and potential office

holders, the integrity of our system of representative democracy

is undermined").

As mentioned, the State also has a compelling interest in

limiting "the appearance of corruption stemming from public

awareness of the opportunities for abuse inherent in a regime of

large individual financial contributions." McCutcheon, 572 U.S.

at 207 (plurality opinion), quoting Buckley, 424 U.S. at 27.

See Buckley, supra, quoting United States Civil Serv. Comm. v.

National Ass'n of Letter Carriers, AFL-CIO, 413 U.S. 548, 565

(1973) ("Congress could legitimately conclude that the avoidance

of the appearance of improper influence 'is also critical . . .

if confidence in the system of representative Government is not

to be eroded to a disastrous extent'"). Such an appearance of

corruption "erode[s] . . . public confidence in the electoral

process." Federal Election Comm'n v. National Right to Work

Comm., 459 U.S. 197, 208 (1982). Both corruption and the

appearance of corruption "directly implicate 'the integrity of

our electoral process, and, not less, the responsibility of the

individual citizen for the successful functioning of that

process.'" Id., quoting UAW, 352 U.S. at 570.

11

treatment, when corruption, or the risk of corruption, stems

from multiple sources, but only one of which is regulated. The

analysis of how "closely drawn" the law is to the State's

interest in preventing corruption and its appearance requires

cognizance of the breadth of that interest. That interest

applies to corruption by unions and nonprofits as well as

business corporations.

The primary support for differential treatment of business

corporations in the area of political finance appears in Austin,

494 U.S. at 654, an independent expenditure case. There, the

Supreme Court was asked to consider the constitutionality of a

Michigan law that prohibited nonmedia corporations from using

general treasury funds for independent expenditures in State

elections, but did not prohibit unions from doing so. Id. at

655, 666. The plaintiff in Austin argued that there was no

compelling interest to justify treating corporations differently

from unions. See id. at 659-660. The Supreme Court held that

the law was closely drawn to two compelling government

interests, both of which have since been rejected in Citizens

United.

First, the Supreme Court in Austin, 494 U.S. at 660,

articulated a government interest in addressing the "corrosive

and distorting effects of immense aggregations of wealth that

are accumulated with the help of the corporate form and that

12

have little or no correlation to the public's support for the

corporation's political ideas." The Supreme Court reasoned that

unions and individuals alike lacked the "significant state-

conferred advantages of the corporate structure" that enhances a

corporation's ability to amass wealth. Id. at 665. Thus, the

State had a compelling interest in "counterbalanc[ing] those

advantages unique to the corporate form," to which the law was

narrowly tailored. Id. This rationale was rejected outright in

Citizens United, 558 U.S. at 351, where it was characterized as

an interest in equalizing speech among different groups,

something that had already been rejected in Buckley, 424 U.S. at

48 (no compelling interest in "equalizing the relative ability

of individuals and groups to influence the outcome of

elections").

Austin, 494 U.S. at 665-666, also articulated a government

interest in protecting dissenting corporate shareholders from

financially supporting the corporation's political activities.

Unlike a corporate shareholder, a union member who disagrees

with the union's political activities may remain in the

organization without being forced to contribute to such

activities. Id. Thus, according to the Supreme Court in

Austin, 494 U.S. at 666, "funds available for a union's

political activities more accurately reflects members' support

for the organization's political views than does a corporation's

13

general treasury." The Supreme Court in Citizens United, 558

U.S. at 361-362, rejected this rationale as well, holding that

"procedures of corporate democracy" (citation omitted) were the

appropriate avenue for relief for dissenting shareholders, and

that such a rationale would "allow the Government to ban the

political speech even of media corporations," id. at 361.

Further, the Supreme Court determined that the appropriate

remedy for any such interest would be to "consider and explore

other regulatory mechanisms," not to restrict corporate speech.

Id. at 362. Perhaps most importantly, the Supreme Court has

also expressly stated that "[n]o matter how desirable it may

seem, it is not an acceptable governmental objective to 'level

the playing field,' or to 'level electoral opportunities,' or to

'equaliz[e] the financial resources of candidates'" (quotations

and citation omitted). McCutcheon, 572 U.S. at 207 (plurality

opinion).

Thus, Citizens United overruled the rationales from Austin

that would have most obviously supported disparate treatment

among business corporations, nonprofits, and unions, at least in

the context of independent expenditures.5 The question then

5 The Supreme Court has also articulated a permissible

government interest in anticircumvention. The court here relies

on examples in the record of corporate campaign finance

violations as indicative that § 8 is necessary as an

anticircumvention measure. See ante at . The court's

14

remains whether the Supreme Court would extrapolate this

reasoning into the area of political contributions, where quid

pro quo corruption and the appearance of such corruption are

directly implicated and remain important concerns. See Buckley,

424 U.S. at 26-27. In determining whether such extrapolation

will occur, we must also consider another set of Supreme Court

cases. Although these cases involved challenges to a Federal

statute that banned contributions from for-profit corporations,

nonprofit corporations, and unions in a similar manner, the

Supreme Court did include language focused on the specific

concerns raised by corporations, including some of the same type

of reasoning from Austin that was disavowed in Citizens United,

at least in the context of independent expenditures.

In Beaumont, for example, a nonprofit corporation, North

Carolina Right to Life, Inc., challenged the constitutionality

of the Federal ban on direct contributions. In upholding the

reliance on anticircumvention is also questionable for two

reasons. First, the continued validity of the anticircumvention

rationale as a separate compelling government interest remains

unclear after McCutcheon. See McCutcheon 572 U.S. at 211

(plurality opinion) (stating that prevention of corruption and

appearance of corruption is "only" legitimate government

interest for restricting campaign finances, while skeptically

referring to "Buckley's circumvention theory"). Second, to the

extent it still is a valid interest, the court fails to indicate

why individuals are more likely to attempt to circumvent

individual contribution limits through a corporation than

through a nonprofit or a union, and I discern nothing in the

case law to suggest this.

15

law, the Supreme Court emphasized "the 'special characteristics

of the corporate structure' that threaten the integrity of the

political process," Beaumont, 539 U.S. at 153, quoting NRWC, 459

U.S. at 209, and "the public interest in 'restrict[ing] the

influence of political war chests funneled through the corporate

form," Beaumont, supra at 154, quoting Federal Election Comm'n

v. National Conservative Political Action Comm., 470 U.S. 480,

500-501 (1985) (NCPAC). In so doing, the Supreme Court

connected these war chests to the objective of preventing

corruption or the appearance of corruption. Beaumont was not

discussed in Citizens United, thereby raising the question

whether the rationales rejected in the context of independent

expenditures may still be viable in the context of direct

contributions when connected to concerns about corruption.

Indeed, in NRWC, another case involving direct contribution

restrictions and the uniform Federal ban, the Supreme Court

reiterated that "'differing structures and purposes' of

different entities 'may require different forms of regulation in

order to protect the integrity of the electoral process'" from

corruption. See NRWC, 459 U.S. at 210, quoting California Med.

Ass'n v. Federal Election Comm'n, 453 U.S. 182, 201 (1982). See

also Beaumont, 539 U.S. at 154-155 (discussing "war-chest

corruption"); Federal Election Comm'n v. Massachusetts Citizens

for Life, Inc., 479 U.S. 238, 257 (1989) (discussing "concern

16

over the corrosive influence of concentrated corporate wealth");

NCPAC, 470 U.S. at 500-501 ("compelling governmental interest in

preventing corruption supported the restriction of the influence

of political war chests funneled through the corporate form").

The majority in Citizens United distinguished NRWC by stating

that the law at issue in NRWC involved restrictions on direct

contributions, "which, unlike limits on independent

expenditures, have been an accepted means to prevent quid pro

quo corruption." See Citizens United, 558 U.S. at 358-359.

These cases also exhibit deference to legislative judgments

about how best to target corruption in the arena of direct

contributions, at least when confronting evenhanded bans on

contributions, Buckley, 424 U.S. at 31 ("a court should

generally be hesitant to invalidate legislation which on its

face imposes evenhanded restrictions"). See NRWC, 459 U.S. at

209-210 ("The statute reflects a legislative judgment that the

special characteristics of the corporate structure require

particularly careful regulation" and "we accept Congress's

judgment"). See also Beaumont, 539 U.S. at 155, quoting NRWC,

supra at 209-210 ("our cases on campaign finance regulation

represent respect for the 'legislative judgment that the special

characteristics of the corporate structure require particularly

careful regulation'"); Buckley, 424 U.S. at 28 ("Congress was

surely entitled to conclude that disclosure was only a partial

17

measure, and that contribution ceilings were a necessary

legislative concomitant to deal with the reality or appearance

of corruption inherent in a system permitting unlimited

financial contributions"). But this statute is at least

arguably not "evenhanded" as it treats business corporations

differently from nonprofits and unions for the purposes of

preventing corruption.

How the Supreme Court will harmonize these cases with

Citizens United remains unclear. Considerations about the

amassing of wealth and the corporate structure seem to be

handled differently depending on the context. It may be that

contributions and concerns about quid pro quo corruption, or its

appearance, allow in these considerations but independent

expenditures, and the speech they entail, do not. This remains

to be seen.

The court, here, does not confront the complexities of

differential treatment in the case law. Indeed, the court has

avoided any discussion of Austin, except in two footnotes. See

ante at notes 5 and 8. Upon an examination of the

jurisprudence, it is far from clear whether the reasoning of

Austin will allow distinctions among business corporations,

nonprofits, and unions, and if so, how.

Ultimately, however, we cannot base our decision on

speculation over whether the Supreme Court will extend its

18

reasoning in Citizens United into the contribution case law and

hold that singling out business corporations for differential

treatment based on reasoning in Austin is impermissible. As the

Supreme Court itself has stated:

"We do not acknowledge, and we do not hold, that other

courts should conclude our more recent cases have, by

implication, overruled an earlier precedent. We reaffirm

that '[i]f a precedent of this Court has direct application

in a case, yet appears to rest on reasons rejected in some

other line of decisions, [other courts] should follow the

case which directly controls, leaving to this Court the

prerogative of overruling its own decisions."

Agostini v. Felton, 521 U.S. 203, 237 (1997), quoting Rodriguez

de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484

(1989). Federal courts have continued to apply the existing

jurisprudence on direct contribution restrictions, rather than

attempting to anticipate possible changes from what the Supreme

Court has said in the context of independent expenditures. See,

e.g., Iowa Right to Life Comm., Inc. v. Tooker, 717 F.3d 576,

602-603 (8th Cir. 2013), cert. denied, 572 U.S. 1046 (2014)

(applying Austin's equal protection clause analysis to uphold

law banning corporate contributions but permitting union

contributions); Minnesota Citizens Concerned for Life, Inc. v.

Swanson, 692 F.3d 864, 879 (8th Cir. 2012) (applying Beaumont,

as well as Austin insofar as it was not explicitly overruled in

Citizens United, to review denial of preliminary injunction

sought against statute that bans corporation contributions but

19

not union contributions); Ognibene v. Parkes, 671 F.3d 174, 184

(2d Cir. 2012) ("Since the Supreme Court preserved the

distinction between expenditures and contributions, there is no

basis for Appellants' attempt to broaden Citizens United").

Supreme Court "decisions remain binding precedent until [that

court] see[s] fit to reconsider them, regardless of whether

subsequent cases have raised doubts about their continuing

vitality." Bosse v. Oklahoma, 137 S. Ct. 1, 2 (2016), quoting

Hohn v. United States, 524 U.S. 236, 252-253 (1998). For this

reason, I concur in the judgment, as the Supreme Court has not

yet extended its holding in Citizens United to restrictions on

direct contributions.