AG’s letter denying certification of our Initiative

On the Massachusetts Initiative to End SuperPACs

Lessig

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The Massachusetts Office of the Attorney General has refused to certify an initiative that had been submitted by EqualCitzens.US and FreeSpeechforPeople.org. The initiative, had we secured the signatures to get it on the ballot and had the voters approved it, would regulate SuperPACS in Massachusetts. The Office of the Attorney General has concluded the Initiative would “violate the free speech rights afforded by the state constitution.” It has therefore refused to certify it as permitted under Article 48 of the Massachusetts Constitution.

EqualCitizens.US (EC) and FreeSpeechforPeople.org (FSFP) believe the initiative is constitutional. Lower courts have concluded regulations like the initiative are not. The Supreme Court has not reviewed the question. EC believes the Court would ultimately find the regulation constitutional, at least if arguments grounded in originalism were accepted by at least two of the Court’s conservatives. (Here is our memo to the AG outlining the argument.) FSFP believes the initiative is constitutional because of a distinction the Court has made between regulations of political speech and regulations of political contributions. (Here is FSFP’s memo outlining their argument.)

Neither argument, however, has yet been presented to the Supreme Court. We are hopeful that we can give the Court an opportunity to consider both. But our expectations about what the Supreme Court might, or even should, do are not the law. And the judgment the Office of the Attorney General had to make was a judgment about the law as it now is.

I respect the judgment of the Office of the Attorney General. I can’t imagine anyone in that Office likes the law as it is. Yet that is plainly not the question the Office had to answer. As the Second Circuit Court of Appeals has commented, “Few contested legal questions are answered so consistently by so many courts and judges.” N.Y. Progress and Protection PAC v. Walsh, 733 F.3d 483, 488 (2d Cir. 2013). We are hopeful at least five judges (actually, Justices) will conclude differently.

UPDATE: But we are challenging the Attorney General’s decision. The simple question is this: Whatever a correct view of how the law will be read is, can an initiative petition be blocked based upon a prediction about how the law will be read? Our view is that it cannot.

Stay tuned for more.

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