Heard Date: March 6, 2018.
action commenced in the Superior Court Department on February
case was heard by Paul D. Wilson, J., on motions for summary
judgment. The Supreme Judicial Court granted an application
for direct appellate review.
Manley, of Arizona (Gregory D. Cote also present) for the
Kobick, Assistant Attorney General (William W. Porter,
Assistant Attorney General, also present) for the defendant.
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.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher,
& Kafker, JJ.
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.
Limits on corporate political spending.
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 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
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. 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 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, §
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."
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 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).
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 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.
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.
The present action.
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 making
political contributions that they would otherwise choose to
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.
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 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
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 against whom judgment is to enter" (citation
omitted), in this case, the plaintiffs. Id.
Free speech and association claim.
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
of public issues and debate on the qualifications of
candidates are integral to the operation of the system of
government established in our 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
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. See National Conference
of State Legislatures, State Limits on Contributions to
Candidates, 2017-2018 Election Cycle (June 27, 2017). In
Beaumont, 539 U.S. 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 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.
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'1 Bank of Boston v.
Bellotti, 435 U.S. 765, 795 (1978) (Massachusetts's
ban on corporate independent 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, 4 53 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).
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 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.
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 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) .
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 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. See Id. at 356-362.
Moreover, the Court defined 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.
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. 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).
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).
plaintiffs contend that, even if we recognize
Beaumont as controlling precedent (which we do), and
apply its "closely 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.
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
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 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.
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 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]).
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.
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
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 "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
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.
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 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 ...