Can the government pass laws that effectively silence groups on one side of a political debate but not the other?
You might think not. After all, under the Constitution, the government is supposed to treat everyone equally — especially when it comes to our participation in politics.
Unfortunately, under the guise of “campaign-finance reform,” some states have enacted laws that muzzle some groups but not others. Massachusetts, for example, has completely banned for-profit businesses from giving money to political candidates and committees. But it allows unions to give candidates and committees up to $15,000. The state also lets unions — but not businesses — create their own political-action committees, which they can use to give even more money.
This gives unions and pro-union candidates a political advantage over their natural rivals, employers and pro-business candidates. And that’s exactly the kind of government interference in politics that the First Amendment is supposed to prevent (campaign donations are considered the equivalent of speech). Yet in September, Massachusetts’s highest court upheld the scheme, pointing to a 2003 U.S. Supreme Court case that approved a federal ban on corporate political contributions.
But that federal law is different in an important way: It’s evenhanded. It applies not only to corporations but also other organizations, including unions.
The Massachusetts Supreme Judicial Court said that doesn’t matter: Banning business contributions helps prevent businesses from trying to bribe politicians, so, the court said, the law is a permissible anti-corruption measure. But couldn’t the government prevent even more corruption by banning union contributions, too? Maybe, said the court, but the government doesn’t have to tackle every kind of corruption at once.
What about the unfair political advantage this gives to unions? That doesn’t matter either, according to the Massachusetts court — unless you can somehow prove that’s what motivated the legislature when it passed the law.
A federal appellate court took the same hands-off approach when it rejected a First Amendment challenge to Illinois’s campaign-contribution limits earlier this year. That scheme restricts the amounts every person and group in Illinois can give to candidates — except political parties and the leaders of the state legislature, who can give as much as they want in a general election, and much more than anyone else in a primary election.
The obvious purpose and effect of that setup is to tilt the political playing field to benefit Illinois’s established political leaders. But the court wasn’t troubled. As long as the limits on other donors would help prevent those donors from engaging in corruption, the court said, there’s no constitutional problem.
Why won’t courts strike down these blatantly discriminatory laws? In 2016, the Goldwater Institute successfully challenged Kentucky’s similar ban on corporate contributions in federal court. But in other places, courts continue to let states get away with these restrictions.
The constitutional principles requiring equal treatment are clear enough. The Supreme Court has said that “the First Amendment stands against . . . restrictions distinguishing among different speakers, allowing speech by some but not others.” It has also said in Buckley v. Valeo (1976) that the government can’t use campaign-finance laws to control the “relative ability of individuals and groups to influence the outcome of elections.” As Chief Justice John Roberts put it in a 2014 opinion, under the First Amendment and our system of government, “those who govern should be the last people to decide who should govern.”
But the Supreme Court hasn’t said exactly how courts should review contribution limits that treat some donors better than others. And when the Supreme Court hasn’t specifically said that a particular type of law should be struck down, lower courts tend to err on the side of restraint. Fortunately, the Supreme Court now has an opportunity to give lower courts the guidance they need. On Wednesday the Goldwater Institute filed a petition for certiorari asking the Court to hear two small businesses’ case challenging the Massachusetts law. And the plaintiffs challenging the Illinois scheme are expected to file their own petition with the Court soon as well.
The Court should hear one or both of these cases and make clear that, when the government restricts political contributions, it can’t play favorites.