The Massachusetts Supreme Judicial Court has decided to uphold the union loophole in state campaign finance law, meaning that the state will continue to give an unfair advantage to unions over businesses when it comes to political speech.
Massachusetts is one of only six states that prohibits employers—but not unions—from contributing to political parties, committees, or candidates. Kentucky had a similar lopsided ban until 2016 when a federal district court ruled the ban unconstitutional in response to a Goldwater Institute lawsuit. The Massachusetts loophole bans political contributions from employers while allowing unions, including out of state unions, to contribute up to $15,000 to a single candidate. Individuals can only donate up to $1,000. Under current law, unions may also contribute via political action committees, while PACs supported by employers are prohibited.
In 2015, the Goldwater Institute teamed with Massachusetts Fiscal Alliance founder Rick Green and board member Mike Kane to file a lawsuit to challenge this double standard. “The union loophole in Massachusetts’ campaign finance law is a clear violation of the constitutional rights of equal protection, free speech, and free association, preventing businesses from having the same say in that political process that unions do,” Goldwater Institute Senior Fellow Jim Manley said. “We’re disappointed the Court would allow such an outright ban on political speech to stand.”
A sharply worded concurring opinion from Justice Kafker criticized the majority for “not confront[ing] the complexities of differential treatment” between businesses and other groups. Justice Kafker concluded that the U.S. Supreme Court must decide whether discrimination against businesses is constitutional in “the post-Citizens United world.”
“Today’s SJC ruling can only be described as a major disappointment that only further upholds the country’s most unfair state campaign finance law,” commented Paul D. Craney, a board member and spokesman for the Massachusetts Fiscal Alliance. “This is a major defeat for proponents of campaign finance reform. Since it was first enacted decades ago, the union loophole has tainted countless elections across our state, even giving a louder voice to out of state union bosses than Massachusetts residents and employers. Fortunately, we are evaluating the next steps and are considering bringing this case to the US Supreme Court, which would have good standing to intervene,” concluded Craney.
Read more about 1A Auto v. Sullivan here.