Challenging Massachusetts’ Lopsided Campaign-Finance Law

by Rachel McPherson
December 12, 2018

Massachusetts may have been home to some of the most passionate patriots and fiercest fights for freedom during the American Revolution, but it’s also home to one of the country’s most lopsided campaign-finance laws that limits freedom of speech.

In modern-day Massachusetts, a law bans businesses—but not unions—from making political contributions. Goldwater Institute Senior Attorney Jacob Huebert joined The Lars Larson Show to discuss why this Massachusetts law is problematic—and why the Goldwater Institute has now asked the U.S. Supreme Court to rectify this double-standard.

Last week, Goldwater filed a petition for certiorari in 1A Auto v. Sullivan on behalf of two Massachusetts small businesses, asking the Court to level the campaign-finance playing field and give businesses the same rights to engage in political speech that unions currently have. “The government should at least have to justify its decision to limit businesses and not unions, but it claimed that it had no burden to do so,” Huebert says. “The government said that as long as limiting businesses would prevent some corruption from potentially happening, then that was good enough. We argue that if you’re going to treat people differently, you should at least have to come up with some explanation.”

And so far, the government doesn’t seem to be able to come up with a solid explanation. Massachusetts is one of the six states to pass a law that bans for-profit businesses from giving money to political candidates, committees, or parties, but the state does nothing to limit unions from participating in the same acts. If the government truly wants to limit potential corruption, then shouldn’t it also ban union contributions to level the playing field?

“The government, under the First Amendment, is supposed to treat everybody equally when they are participating in politics. The government is not supposed to restrict some people more than others. We can see why that is obviously wrong—it’s favoring some ideas over others and it’s favoring some candidates over others,” Huebert explains. “Under the First Amendment, the government is supposed to stay out and let voters decide who they favor. These lopsided campaign-finance schemes don’t do that.”

When laws like this are challenged, lower courts tend to err on the side of caution because there isn’t much of a legal precedent for how they should be dealt with—but now, the nation’s highest court will have the opportunity to weigh in on the case. “There are good reasons why they should take this case. Lower courts have said that it’s not clear how they are supposed to treat contribution limits that discriminate like this. In fact, Neil Gorsuch pointed out this problem. There could be an appetite by the Supreme Court to provide clarity here—to tell courts what they should do when states restrict some groups’ contributions more than others.”

You can listen to the full segment above, and to learn more about the 1A Auto case, go here.

Rachel McPherson is a Ronald Reagan Fellow at the Goldwater Institute.