Lawsuit Challenging Intimidation Legislation Heads to Court

State law violates First Amendment, lawsuit says

The Massachusetts Fiscal Alliance (MassFiscal), a non-partisan non-profit organization represented by the Institute for Free Speech (IFS), heads to federal court on Tuesday in an ongoing lawsuit against the state’s intimidation legislation. The lawsuit was filed on October 10 of 2018 and challenges some of Massachusetts’ campaign finance laws as unconstitutional.

Unlike most states, Massachusetts requires ads that name candidates within 90 days of a general election to include a list of the organization’s top five contributors, regardless of their purpose for making their donation, a statement from a principal officer of the organization running the ad, and a link to a government website. MassFiscal believes this information is irrelevant, cannot be required, and is ultimately intended to silence and limit speech. The law was passed by the legislature in 2016 and has created a chilling effect on organizations. Not a single organization filed an electioneering communications disclosure report since the law passed. 

During the 2018 election, MassFiscal wished to run educational and informational ads in State Senator Marc Pacheco’s district. Senator Pacheco was running unopposed, and accordingly, MassFiscal’s ads could not have had an effect on his re-election. But MassFiscal refused to run the ads at the price of forfeiting its members’ privacy. The same ads were aired shortly after the election without the disclaimers.

Campaign finance laws were created to hold government officials and candidates seeking office accountable for corruption. Too often they are used to hold voters, citizens, watchdog organizations, and donors "accountable" for their dissenting political views. Massachusetts Attorney General Maura Healey’s office has proven that point in the lawsuit. Even though a major point of the lawsuit is to protect the privacy of MassFiscal’s supporters, Healey’s office has argued that MassFiscal should be compelled to disclose its members for examination by the state The Attorney General’s office is, unironically, using a case about MassFiscal members’ privacy to invade their privacy.

On July 26, MassFiscal and IFS filed a motion to counter the state’s demands. Our argument notes that the essence of our First Amendment freedoms—the freedom of speech, the freedom to organize, the freedom to raise money, and the freedom to associate with like-minded persons— is under attack from the intimidation legislation. The First Amendment right to associational privacy is longstanding, and “all legitimate organizations are the beneficiaries of [its] protections.”

The Supreme Court first heard similar concerns by Southern racist politicians who wanted to disclose the membership rolls of the NAACP during the civil rights era because they participated in civil rights advocacy. The court said at the time, “effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association.” That benefit is precisely why state action which has the effect of curtailing the freedom to associate and speech must be challenged. A fishing expedition is insufficient reason to justify a motion to compel and the state seeks to force the disclosure of irrelevant private information, a violation of the Federal Rules and the Constitution. Its motion should be denied.

“Vindicating First Amendment rights in federal court should not involve the government rummaging through constitutionally-protected donor information, especially when – as here – that information is of no value to the Commonwealth’s case,” explained Institute for Free Speech Legal Director Allen Dickerson.

MassFiscal is not challenging the state’s other disclosure and reporting requirements. The group objects to being forced to publish irrelevant information about its officers and donors on the face of its ads. These requirements may result in viewers making biased judgments about an ad based on the officer’s sex, gender, race, speech pattern, or other irrelevant personal characteristics. For donors, these requirements imply they funded the ad, when in reality they may know nothing about the ad – or even disagree with it – and simply support the organization’s overall mission.

“Massachusetts should be working to expand our First Amendment rights, not contract them. The intimidation legislation should be repealed and publicly condemned by all those who want fairer elections and more open debate. Our lawsuit aims at removing intimidation from the process,” commented Paul Craney, a member of the Massachusetts Fiscal Alliance Board of Directors and spokesman for the organization.

Key Facts About the Case:

Although the Attorney General is requesting donor disclosure, it is in connection to the lawsuit, and not a campaign finance violation.

MassFiscal wants to advertise its legislative scorecards and educate the public on the legislature’s votes and positions within 90 days of election. It does not want to promote activities to elect or defeat candidate for office.

Former disgraced state Representative Garrett Bradley (D-Hingham) advanced the original intimidation legislation into law, as head of the committee charged with campaign finance law. He was later accused of orchestrating the country’s largest straw donor scheme in history and had to resign from the legislature under an investigation which is still ongoing.

MassFiscal’s dilemma illustrates the ultimate effect of political speech laws: fewer groups are willing to speak about government.

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