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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 anticircumvention 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.'" WilliamsYulee, 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

 

10 Because 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, OCPFIB-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 selfevident." 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 officeseekers' 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 electionrelated 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" postCitizens 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 stateconferred 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.