Just returned from the oral argument in Herrmann v. Attorney General, our case challenging the refusal of the Attorney General to certify our petition regulating contributions to SuperPACs. As is my wont, here are some post-argument reflections.
In June 2022, Equal Citizens submitted an initiative petition to the Attorney General of Massachusetts proposing to limit contributions to independent expenditure PACs to $5,000 annually. In September, the Attorney General denied certification, finding the petition “inconsistent” with the “freedom of speech” protected by Article 16 of the Massachusetts Constitution. We appealed her decision, and she cross-moved that our petition would be moot before the Court could resolve the question. Both questions were consolidated for argument today.
The mootness issue was a frustrating distraction. The process in Massachusetts (under Article 48 of the Constitution) was well described by the Attorney General in her brief. The process starts:
with the submission of the proposed law to the Attorney General and [proceeds] through the certification process, the first signature gathering period, the time for legislative action, the second signature collection period, and then, ultimately, the election.
Though we had not yet completed “the certification process”—because we were challenging the decision to refuse certification—the argument of the Attorney General was that we, and every petitioner whose petition is denied, must first gather signatures before we had the right to challenge her ruling denying certification. Because we hadn’t gathered signatures, she said, we shouldn’t have the right to appeal her decision. And on the merits, the Attorney General insisted that though Citizens United had addressed limits on expenditures, it had also decided that limits on contributions to independent expenditure PACs were constitutionally protected as well. (Her brief is here.)
By the end of the argument, it was clear the Court understood certain critical parts of the argument. It was also clear they were stuck at other critical parts. I had a map of where I wanted the argument to go going in. Here’s the map, with an indication of whether I thought the point was, by the end of the argument, understood, either from what I said or from what Ron said, or from the questions from the bench.
What follows below is a different map — of what’s most troubling about what was said from the bench, in no particular order. These “troublings,” however, should be kept in context: I don’t think I’ve ever argued before a better prepared or more engaged bench. It is a rare privilege, and, regardless of the result, the Commonwealth is lucky to have such a court.
“Changing the law costs money.”
The most encouraging part of the argument was the Court making clear that they didn’t believe that there was a requirement in the law — either the Constitution or statutory law—that a petitioner must gather signatures in order to challenge the Attorney General’s ruling. The most concerning part of the argument was their willingness nonetheless to entertain the idea of them, the Court, imposing such costs upon all petitioners who wish to challenge the Attorney General. Yes, petitioners wouldn’t be forced to gather signatures during the most expensive period to gather signatures (our expert estimated that would cost at least $1 million beyond the ordinary costs of gathering signatures). But, still, under the suggested alternative, petitioners would be forced to gather signatures on an uncertified petition in order to have the privilege of challenging the Attorney General’s refusal to certify that petition.
It astonished me how easily and without concern this idea was even entertained. One justice repeated an argument of the Attorney General that had seemed so implausible that it didn’t even seem necessary to address: that if petitioners were allowed to challenge the AG’s decision without being forced to gather signatures, then “any 10 citizens” could bring whatever crazy ideas to the Court, and the Court would be required to consider them. The AG’s argument was wrong because, first, the only issues that could come to the Court would be those that the Attorney General rejected, and second, the only issues that would come to the full Court would be those a single justice believed merited full Court consideration. The parade of horribles is not a parade. Nonetheless, to avoid troubling the Court, the Attorney General was advancing a requirement that she recognized was not actually in the Constitution or ratified by the legislature.
What was tempting the Court was the idea that it should avoid “unnecessarily” deciding constitutional questions. We’ve been arguing from the start that there’s nothing “unnecessary” about this question, if deciding them determines whether we get a certified petition or not — and hence a chance to gather signatures on a certified petition. But the other point should also be obvious: these are not constitutional questions, in the sense that they would determine what the “free speech” clause of Article 16 means. This is just a decision whether the Attorney General did her job under Article 48 correctly or not. No one could rely upon the answer to that question to say anything about what “free speech” means.
We should not miss the significance of such a cost, if indeed the Court chooses to impose it: Gathering signatures is a huge burden, especially for nonprofit reform organizations, in any case. The idea that you would expend those resources on a petition that had not been certified is nuts. Why waste that extraordinary effort when there is a significant chance it won’t even result in a petition that would appear on the ballot? Thus, the real consequence of such a rule would simply be to block the initiative process whenever the Attorney General does not approve the initiative. When you read the debates in the Convention (1917–18) where they created the initiative — where, for example, they struggled and then rejected the idea of a refundable $100 bond because that was too much a burden—you get a stark sense of how far this idea is from the ideals of that Convention.
This is not a federal question.
Maybe the most troubling comment by a Justice was the suggestion that if they followed us, their opinion would be struck down by the Supreme Court immediately. This revealed a profound failure by us to convey the nature of the question the Court was determining. The issue the Court needed to resolve was whether the initiative was “inconsistent” with “free speech” under the Massachusetts Constitution. No matter what the Court said, it was not going to create an issue that could get to the United States Supreme Court. If they allow the initiative to go forward, and it passed, then, of course, it will be challenged, and no doubt challenged in federal district court. But there would be no decision by this Court that could get to SCOTUS until the initiative had passed. So there was exactly zero risk that the Supreme Court would reverse this Court’s decision in this case.
Citizens United is not this case.
The other most troubling part of the argument was the insistence by the Attorney General that this case is Citizens United.
The story of the constitutional protection for SuperPACs in American law is an embarrassment for American law. Yes, if you think about it for just 2 minutes, it seems right that if the First Amendment protects independent expenditures, it must protect contributions to make those expenditures. But if after 20 minutes of thinking about it honestly, that is still your conclusion, then you’re revealing something about you, not the argument. It is so clearly logically false to equate the two questions that it is astonishing anyone still would. But here we are, 10 years into this insane experiment, and still, lawyers will insist that if one is free, the other must be free — not as a matter of policy, but as a matter of logic.
My co-counsel in the argument, Ron Fein, did a masterful job trying to demonstrate the logical error. He succeeded in showing even the most skeptical that indeed, contributions to a PAC risked quid pro quo corruption even if expenditures by that PAC did not. That led justices to the wholly irrelevant question about whether the restriction was overbroad — irrelevant because, at this stage, the Court is not supposed by deciding the First Amendment question, but simply addressing whether it is “conceivable,” as Associated Industries put it, that the measure would be constitutional. Maybe it would be overbroad, but the fact that the word “maybe” is in that sentence means the initiative must be allowed.
But it is clear we need a simpler way to show the logical error that the actual experience of campaign finance corruption over the past decade has made manifest. It should have been obvious to the DC Circuit when they decided SpeechNow v. FEC; it is inexcusable that is not obvious to everyone now. I’m going to experiment a bit with how best to make this clear elsewhere. Stay tuned. Suffice it that in this argument, Fein succeeded in getting the justices to see that yes, contributions to an independent expenditure PAC can raise quid pro quo corruption concerns—something SpeechNow said was logically impossible. If they recognize what they saw, and they apply their own law, then they should allow the initiative to go forward.
But that’s a big “if,” because the last most concerning point that came from the argument is whether they understand or will apply their own law.
“Reasonably clear”: the challenge of text taken out of context.
The most troubling of these most troubling parts from the argument was recognizing how invisible the Court’s own standard was to the Court itself. And this, I suggest, is a lesson in the danger of summary slogans.
If you read the decisions of the SJC describing the standard that it says it will apply, they are very clear: the question is not, What does the First Amendment require? The question is instead, Is it “conceivable” that this initiative could be upheld under the First Amendment?
The genesis of this standard is a really great opinion from 1994: Associated Industries v. AG. That initiative sought to limit the use of corporate funds to support or oppose a ballot measure. The Supreme Court had not yet decided the question. But the perspective of the SJC was not to predict how the Court would decide the question. The standard the SJC established was much more deferential: Was it “conceivable” that “facts might show that what appeared on the limited factual record to be at least constitutionally questionable was in fact a permissible subject of a referendum.” Conceivable. If it was “conceivable” then “our role,” the Court instructed, “is not to prevent the people from voting on the proposal.”
This standard is very different from the perspective of predicting how the Court will rule. For example, if you ask 100 well-informed lawyers how they would bet on our case, the vast majority would say that the Supreme Court is likely to agree with the Attorney General. But if you ask 100 well-informed lawyers whether, given the arguments presented, it is “conceivable” the Court would go the other way, the same majority would agree with us. “Conceivable” is not a prediction; “conceivable” is a measure of what arguments are relevant and whether those arguments could work.
The trouble is that this great case, Associated Industries, summarized its standard by the slogan: is it “reasonably clear” that the initiative was unconstitutional? If that slogan is all you read from the case, that makes it sound like the job of the Attorney General (and the Court) is to predict the Supreme Court’s view of the initiative. That’s not what the actual case does. It’s not what other cases do — an earlier case had described the standard as omitting “obviously improper” initiatives. But a tweet-length summary of Associated Industries does suggest that the AG is supposed to predict what the Supreme Court will do. And if that is the standard, none could say that prediction was irrational.
So here, the question will turn upon how radically this Court will change its own law. If it follows the reasoning of Associated Industries, it should reject the prediction of the Attorney General, and permit the people to vote. If it follows the tweet-length summary of Associated Industries, it will uphold the judgment of the Attorney General, and block the ability of the people to vote.
And if it does that, then again, we will have lost another chance to get the law regulating SuperPACs right.
Is it inconceivable the originalists would be consistent?
By far, my favorite bit of the argument was the part I insisted they let me make: about originalists, and what originalism would say about the regulation of SuperPACs.
Because it is plain that originalism would permit the regulation of SuperPACs. If the originalists were consistent in their originalism, they would permit the regulation of SuperPACs. (You can read our opening brief making that argument here; here’s the reply.) We actually just need two of the originalists to be consistent to get a majority to regulate SuperPACs. But regardless of the numbers, if the originalists were consistent in their originalism, SuperPACs could be regulated.
So here’s where the standard of Associated Industries and the argument I was making intersect: If the standard is whether it is “conceivable” that the initiative would be upheld, is it “conceivable” that the originalists would apply their principles consistently? Or put the other way round, is it inconceivable that the originalists would behave in a consistent manner? One Justice picked up on the point: As she commented, “I hope you are right that it is not an unreasonable belief.” Someone else — I can’t tell who—then openly cackled at the suggestion. (You can watch the argument here. You can see the laugh at 15:11.)
This, in the end, is everything in this fight, at least as I’ve been waging it, for now, more than a decade. Yes, Vox Prudentia,
When I think of the endless hours (pro bono!) struggling to get the chance to get the originalists to show us whether it is just “hype” or not, it does feel tragic. But maybe it is even more tragic that someone would think the suggestion so obviously absurd that they could openly cackle at the idea in a state supreme court chamber.
Thus is our time.
Stay tuned for the results.