Category Archives: Legal

e-cigarettes in the news

aaj

From my daily American Association for Justice newsletter –

 

US officials say e-cigarettes cannot be allowed to become a conduit for teenage addiction.

In a Washington Post (10/11, 12.5M) op-ed, HHS Secretary Alex M. Azar and FDA Commissioner Scott Gottlieb write that they are “deeply concerned about the risks that e-cigarettes pose for children, given how quickly teenage use of these products has accelerated.” Azar and Gottlieb say it is “crucial that e-cigarettes do not become an on-ramp for children to become addicted to nicotine. But at the same time, we believe e-cigarettes can be an important off-ramp for adults who are addicted to combustible cigarettes.” The duo add that they “know that the steps we have taken thus far are not enough. We are considering limits on the marketing and features of e-cigarettes to reverse their appeal and availability to minors. We are also actively reconsidering our policy under which certain e-cigarettes – particularly the products with flavors that might appeal to children – can remain on the market without submitting a premarket application to the FDA until 2022.”

FDA warns e-cigarette manufacturer over selling liquids containing erectile dysfunction meds.

The Philadelphia Inquirer (10/11, Schaefer, 928K) reports the FDA issued a warning letter on Thursday to e-cigarette maker HelloCig Electronic Technology after the agency found that it was selling the prescription erectile dysfunction drugs tadalafil and/or sildenafil in e-liquid form. FDA Commissioner Scott Gottlieb announced, “There are no e-liquids that contain prescription drugs that have been proven safe or effective through this route of administration.”

The Washington Examiner (10/11, King, 299K) reports the FDA statement accompanying the warning letter said, “These FDA-approved prescription drugs are not approved for inclusion in e-liquid products sold over the counter and are therefore being sold illegally.”

MedPage Today (10/11, Boyles, 52K) reports Gottlieb added, “There are no e-liquid products approved to contain prescription drugs or any other medications that require a doctor’s supervision.”

Know the Signs of Elder Abuse

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PETERSON | Law

Osler “Pete” Peterson

617-969-1500 – Newton

September 2018

Attorney Photo

Perfect Storm Jeopardizes Safety of Older Adults

The prevalence of elder abuse in both institutional and in-home care settings appears to be rising due to a perfect storm of circumstances. First, the number of Americans 65-plus is exploding as Baby Boomers age and require more care. Second, for-profit companies, which now own more than 70 percent of the nation’s nursing homes, often cut staff and other resources to meet investor expectations. And third, government oversight and support are disappearing as budget cuts increasingly target these services. That leaves it up to all of us to be more vigilant than ever for the signs of elder abuse.

Elder Care

Protect Loved Ones from Nursing Home Abuse

Choosing nursing home, assisted living or in-home medical care is complicated, difficult and often an emotional process. The last thing on your mind is the possibility that those responsible for the care of some of our most vulnerable citizens would abuse or neglect their patients. But it does happen all too often, which is why you should know the signs of elder abuse and how to find quality care for the older loved ones in your life.

BY THE NUMBERS

13%

Adults 65-plus make up 13 percent of the population, numbering more than 40 million.

VIDEO BOOKMARK

A Culture of Denial,
a Failure to Act

CNN investigation uncovers rampant sexual assault in elder care facilities – and little accountability.

THE DOCKET

ONLINE ABUSE

Social media abuse of nursing home residents often goes unchecked, reports NPR.

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SJC today upheld the Massachusetts ban on corporate political donations

SJC

“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.”

 

================================================

NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us
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.

AAJ protecting veterans

My American Association for Justice (a national group of plaintiff personal injury attorneys) just shared this –

Fighting for Those who Fight for Us

Servicemembers and veterans are often targeted by the unscrupulous and, despite their service to their country, are frequently denied the constitutional rights they fight to protect.

Though Congress has passed laws to protect the rights of servicemembers and veterans, legal maneuvers have left many unable to hold wrongdoers accountable when a bank forecloses upon a deployed soldier’s home, when an employer fires a reservist who’s called to active duty, when a commanding officer rapes a subordinate, or when exposure to a toxic substance on the job causes cancer.

When our institutions fail to protect the rights of men and women who make up America’s first line of defense, the civil justice system has proven to be the last line of defense.

FDA: e-cigarettes and children

From today’s American Association for Justice’s TRIAL magazine, FDA focusing on e-cigarette use by minors (see blue text below)

 

Trial

Top Story

FDA releases new action plans for medical devices, e-cigarettes

May 2018 – Kate Halloran

a stamper that stamps the word "HEALTH"

The FDA recently announced action plans for medical device safety and reducing sales and marketing of e-cigarettes to children under 18. The “Medical Device Safety Action Plan: Protecting Patients, Promoting Public Health” outlines the agency’s priorities for addressing safety for the more than 190,000 devices that it regulates, and its Youth Tobacco Prevention Plan aims to hold manufacturers and distributors accountable for illegally selling these devices to children.

The FDA recently announced action plans for medical device safety and reducing sales and marketing of e-cigarettes to children under 18. The “Medical Device Safety Action Plan: Protecting Patients, Promoting Public Health” outlines the agency’s priorities for addressing safety for the more than 190,000 devices that it regulates, and its Youth Tobacco Prevention Plan aims to hold manufacturers and distributors accountable for illegally selling these devices to children.

The medical device action plan highlights five areas: creating a patient safety net, improving the postmarket process for safety-related changes, encouraging development of safer devices, improving device cybersecurity, and enhancing the “total product life cycle” approach to device safety within the FDA.

Many of the plan’s objectives illustrate the role that technology will play in medical device oversight. For example, the patient safety net will rely on the National Evaluation System for Health Technology (NEST), which is run by the nonprofit Medical Device Innovation Consortium. NEST’s goal is to collect electronic health data from a variety of sources—such as medical records, device registries, and patient complaints—to share real-time data among providers and the agency to expose adverse events and safety issues more quickly. As part of its action plan, the FDA intends to devote more resources to its role in NEST and to seek additional funding for the system.

Another example is device cybersecurity, which has garnered increased scrutiny as more medical devices integrate internet-based features that place the device and the patient at risk when there are software vulnerabilities. The FDA’s plan includes possibly adding premarket cybersecurity requirements for medical device manufacturers, such as having to build into devices the ability to update software and address cybersecurity threats and having to disclose to the agency an inventory of the software in a device as part of the premarket submission process—information which also must be made available to the public. Other potential changes include updates to premarket guidance on protecting against cybersecurity risks that pose a danger to patients, developing standards for timely disclosing risks, and creating a separate entity that would oversee device cybersecurity and the response process with manufacturers when a risk is identified.

The agency also announced steps it is taking to address marketing and sales of electronic nicotine delivery systems (ENDS)—often called e-cigarettes—to minors. As part of a ramped-up Youth Tobacco Prevention Plan, the FDA is targeting e-cigarette use among minors to reduce nicotine addiction and to reduce the transition to traditional tobacco products in the next generation. The use of e-cigarettes—known as vaping—has become especially popular with teenagers, partly due to the discreet nature of the devices, which can resemble a USB drive, and the fruit and candy flavors of the liquid used in the devices.

A critical component of the FDA’s plan is increasing enforcement actions against companies that improperly market and sell e-cigarettes to children. One company, JUUL, has become a particular focus: Since March, the agency has sent JUUL 40 warning letters over its sales to minors and has requested documents about the company’s marketing tactics, health and behavioral research that it has conducted on its products, and information about whether design features or ingredients appeal to certain demographics.

Lawrenceville, N.J., attorney Domenic Sanginiti, who handles e-cigarette cases, noted that regulatory efforts initiated when e-cigarettes became popular left a loophole that has impacted minors. “When the FDA extended its tobacco regulation arm to include e-cigarettes, the industry was put on notice that selling and marketing to children under 18 would be banned. The FDA did not, however, issue a similar ban regarding the use of flavors known to appeal to children and young adults—as it did for cigarettes in 2009.” Sanginiti explained that as a result, products that would appeal especially to children “flooded” the marketplace. “JUUL has a sleek design like a flash drive, is easy to hide, and comes in cool colors and fruity flavors. This has caused its popularity in school-age children to skyrocket, prompting some schools to ban flash drives and doctors and educators to condemn JUUL as a major teen health threat,” he said.

Other elements of the FDA’s initiative include collaborating with online retailers such as eBay to remove listings that target children, requesting information from and increasing enforcement against additional manufacturers, and running an online e-cigarette prevention advertising campaign. Sanginiti noted that although these efforts are a step in the right direction, the agency should treat e-cigarettes more aggressively, as it does traditional cigarettes—from banning flavors that appeal to children to lowering and eventually removing nicotine from e-cigarettes.

Sanginiti also pointed out that regulatory rollbacks of the FDA’s “deeming rule” to include ENDS products in its tobacco-regulating authority have exacerbated the situation. “The original deeming rule would have already required e-cigarette companies to file FDA applications for existing and new tobacco products. . . . However, after a comment period, the FDA pushed that requirement out to 2022. Had it not done so, it’s possible that the JUUL product and others would not have been approved without modifications.”

SJC on Open Meeting Law today

SJC2

SJC interprets Open Meeting Law as mandating no opinion sharing outside meetings

Today the Supreme Judicial Court issued an opinion stating the Board of Selectmen of Wayland violated the Open Meeting Law when it circulated by email to select board members ahead of a select board meeting (held to evaluate the town administrator’s performance) the evaluations done by each selectman and a composite summary.  This violated the Open Meeting Law because the evaluations contained the “opinions” of the board members, and thus constituted a prohibited “deliberation” outside a posted meeting.

 

This is what the SJC held:

We conclude that this exemption was enacted to foster administrative efficiency, but only where such efficiency does not come at the expense of the open meeting law’s overarching purpose, transparency in governmental decision-making.
As the individual and composite evaluations of the town administrator by the board members contained opinions, the circulation of such documents among a quorum prior to the open meeting does not fall within the exemption , and thus constituted a deliberation to which the public did not have access, in violation of the open meeting law.  We therefore affirm the judge’s decision allowing summary judgment for the plaintiffs on this ground.  We agree with the board, however, that the judge erred in “striking” the Attorney General’s determination, and vacate that portion of the judge’s decision.
The SJC also told us that there is a solution, namely by making the select board materials with the opinions available to the public at the same time as the select board shares them, such as by posting the materials on the town website:
If board members wish to circulate documents containing board member  opinions among a quorum in advance of an open meeting, as here, prior and relatively contemporaneous public disclosure of those documents , where permissible, is necessary in order to comply with the open meeting law and to
advance the statute’s over-all goal of promoting transparency in governmental  decision-making.

School bully causes quadriplegia, and SJC holds school not liable

Today the Supreme Judicial Court ruled that the Massachusetts Tort Claims Act protects a school against claims that it failed to protect a fourth grader from bullying that resulted in his quadriplegia, because such liability of the schools for the acts of third parties only arises, per the MTCA statute, when the school has an affirmative obligation to act, which the court held the school did not in this instance.

SJC

NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us
SJC-12323
ALYSSA CORMIER & another1 vs. CITY OF LYNN & others.2
Essex. November 9, 2017. – February 27, 2018.

Present: Gants, C.J., Gaziano, Lowy, & Budd, JJ.

Massachusetts Tort Claims Act. Governmental Immunity.
Municipal Corporations, Liability for tort, Governmental
immunity. School and School Committee, Liability for tort.
Negligence, Governmental immunity.

Civil action commenced in the Superior Court Department on March 2, 2011.

A motion to dismiss was heard by Robert N. Tochka, J.

After review by the Appeals Court, the Supreme Judicial
Court granted leave to obtain further appellate review.
Douglas K. Sheff (Sara W. Khan, Frank J. Federico, Jr., &
Donald R. Grady, Jr., also present) for the plaintiffs.
James P. Lamanna, Assistant City Solicitor (George S.
Markopoulos, Assistant City Solicitor, also present) for city of
Lynn.
1 James Mumbauer, individually and as parent and next friend
to Matthew Mumbauer.
2 Nancy Doherty, Debra Ruggiero, Linda J. Morgan, Lynn
Public Schools, North Shore Medical Center (NSMC), and Ethel Wu.
One defendant is a minor and will not be named.
2
Gary Buseck, Patience Crozier, & Joseph N. Schneiderman,
for GLBTQ Legal Advocates & Defenders, amicus curiae, submitted
a brief.
BUDD, J. Bullying is a persistent, pernicious problem in
our schools — it can cause emotional and, at times, physical
harm. In this case, Matthew Mumbauer suffered both. Matthew
was a public elementary school student in Lynn when he was
pushed down a stairwell at school by a classmate. Matthew’s
fall led to a spinal injury, resulting in permanent paralysis.
He and his parents, Alyssa Cormier and James Mumbauer
(collectively, plaintiffs), brought claims against a number of
defendants in connection with the incident and Matthew’s
subsequent medical care. A Superior Court judge allowed a
motion to dismiss all claims against the city of Lynn, Lynn
Public Schools (school district), and their public employees
(collectively, public defendants).3 The Appeals Court affirmed
that decision in an unpublished memorandum and order issued
pursuant to its rule 1:28. Cormier v. Lynn, 91 Mass. App. Ct.
1101 (2017).
3 A Superior Court judge dismissed the plaintiffs’ complaint
against the defendants Morgan, Wu, and NSMC after the medical
malpractice tribunal found that there was not sufficient
evidence to raise a legitimate question as to liability
appropriate for judicial inquiry. A settlement agreement was
reached with the classmate who pushed Matthew; all claims
against him were dismissed with prejudice.
3
We allowed the plaintiffs’ motion for further appellate
review, limited to whether the Massachusetts Tort Claims Act
(act), G. L. c. 258, § 10 (j), bars the plaintiffs from bringing
claims against the public defendants in relation to this
incident. Thus, the issue that we must decide is not whether
the school was negligent for failing to act reasonably to
prevent the bullying that led to Matthew’s injuries; the
complaint alleges that it was, and for purposes of this appeal,
we accept that allegation as true. Rather, the issue on appeal
is whether, under the act, the public defendants may be held
liable for that negligence. We conclude that the act protects
them from liability for such negligence.4
Background. The facts of this case, drawn from the
complaint, are tragic. On March 10, 2008, then fourth grade
student Matthew Mumbauer was pushed down a stairwell by a
classmate while attending a public elementary school in Lynn.
The incident occurred while the students were lining up at the
beginning of the school day.
By late morning and throughout the afternoon, Matthew
complained to teachers and classmates of “tingling and numbness”
in his extremities. His symptoms were not reported to the
school nurse or any other medical professionals. By the end of
4 We acknowledge the amicus letter submitted by GLBTQ Legal
Advocates & Defenders.
4
the school day, Matthew reported feeling like his legs were
“dead weight” and he needed assistance to walk out of the
school.
In the afternoon, Matthew’s parents brought him to North
Shore Medical Center (NSMC), where he was diagnosed with a
sprain in his right foot and given pain medication. He stayed
home from school the following day. On March 12, Matthew
returned to NSMC because he was unable to move his hands or
legs. Matthew was then transferred to Massachusetts General
Hospital in Boston, where he was diagnosed with an injury to his
spinal column and spinal cord, which resulted in the onset of
quadriplegia. He is permanently paralyzed and confined to a
wheelchair.
The plaintiffs’ complaint alleges that, prior to being
pushed down the stairs in March, 2008, Matthew was subject to
constant bullying at school by a small group of students,
including the classmate who pushed Matthew. Matthew’s mother
had reported acts of harassment levied against him on multiple
occasions during the 2007-2008 school year to school officials.
Matthew had also complained to teachers and administrators at
the school numerous times about bullying and harassment. The
plaintiffs contend that the school did not enforce its own
antibullying policies.
5
Discussion. “We review the allowance of a motion to
dismiss de novo.” Curtis v. Herb Chambers I-95, Inc., 458 Mass.
674, 676 (2011). “For the purposes of that review, we accept as
true the facts alleged in the plaintiffs’ complaint[] and any
exhibits attached thereto, drawing all reasonable inferences in
the plaintiffs’ favor.” Revere v. Massachusetts Gaming Comm’n,
476 Mass. 591, 595 (2017).
1. Sovereign immunity and the act. For over a century,
“the Commonwealth c[ould] not be impleaded in its own courts,
except by its own consent” at common law. Troy & Greenfield
R.R. v. Commonwealth, 127 Mass. 43, 46, 50 (1879).5
Municipalities were also largely immune from liability in tort.6
See Bolster v. Lawrence, 225 Mass. 387, 388-390 (1917)
(summarizing circumstances in which municipalities were immune
5 After this court’s decision in Troy & Greenfield R.R. v.
Commonwealth, 127 Mass. 43 (1879), the Legislature passed St.
1887, c. 246, which authorized the Superior Court to hear
certain claims against the Commonwealth. This court construed
the statute to exclude jurisdiction over tort claims. See
R. Zoppo Co. v. Commonwealth, 353 Mass. 401, 404 (1967); Smith
v. Commonwealth, 347 Mass. 453, 456 (1964); Murdock Parlor Grate
Co. v. Commonwealth, 152 Mass. 28, 30-31 (1890). See also
Morash & Sons, Inc. v. Commonwealth, 363 Mass. 612, 614-615
(1973) (discussing waiver of sovereign immunity implicit in St.
1887, c. 246, and its successor statute).
6 Prior to 1973, a municipality was not liable for tortious
acts in the conduct of its schools. See Desmarais v. Wachusett
Regional Sch. Dist., 360 Mass. 591, 593-594 (1971); Molinari v.
Boston, 333 Mass. 394, 395-396 (1955); Reitano v. Haverhill, 309
Mass. 118, 122 (1941); Warburton v. Quincy, 309 Mass. 111, 117
(1941); Sweeney v. Boston, 309 Mass. 106, 109-110 (1941); Hill
v. Boston, 122 Mass. 344, 380 (1877).
6
from liability in tort at common law); Mower v. Leicester, 9
Mass. 247, 249 (1812) (concluding that common law prohibits tort
actions that are not statutorily authorized for “neglect of
duties enjoined on them”). Public employees were always immune
from liability for negligent omissions, or “nonfeasance.” See
Desmarais v. Wachusett Regional Sch. Dist., 360 Mass. 591, 593
(1971); Trum v. Paxton, 329 Mass. 434, 438 (1952).
In Morash & Sons, Inc. v. Commonwealth, 363 Mass. 612, 618-
619 (1973), and Whitney v. Worcester, 373 Mass. 208, 210 (1977),
we determined that the underlying basis for common-law sovereign
immunity for both the Commonwealth and municipalities was
“logically indefensible,” and stated our intention to abrogate
the doctrine of municipal immunity after the conclusion of the
1978 legislative session (providing the Legislature with an
opportunity to set forth sovereign immunity policy for the
Commonwealth and its political subdivisions through
legislation). We reasoned that the common-law rules of
sovereign immunity were incompatible with the fundamental
principle in tort “that if there is tortious injury there is
liability.” Morash & Sons, Inc., supra at 621. At the same
time, we acknowledged that public policy demanded some
reasonable limits to governmental liability in order for
taxpayers to avoid a potentially catastrophic financial burden.
See id. at 623 & n.6.
7
Shortly before the end of the 1978 legislative session, the
Legislature passed G. L. c. 258, the act,7 which allowed for
limited tort liability for the Commonwealth and its political
subdivisions. See St. 1978, c. 512. Section 2 of the act
provides that public employers are liable for negligent or
wrongful acts or omissions of public employees acting within
their scope of employment. See G. L. c. 258, § 2.8
2. G. L. c. 258, § 10 (j). Although the act statutorily
eliminates the immunity that governmental bodies would
ordinarily enjoy under common law, it sets forth several
exceptions to that general waiver of sovereign immunity. See
G. L. c. 258, § 10 (a)-(j).
7 This court and commentators refer to G. L. c. 258 as the
Massachusetts Tort Claims Act (act). See, e.g., Brum v.
Dartmouth, 428 Mass. 684, 686 (1999); Jean W. v. Commonwealth,
414 Mass. 496, 498 (1993); Dinsky v. Framingham, 386 Mass. 801,
802 (1982); Glannon, The Scope of Public Liability Under the
Tort Claims Act: Beyond the Public Duty Rule, 67 Mass. L. Rev.
159, 159 (1982). However, the act’s full title is “An Act
establishing a claims and indemnity procedure for the
commonwealth, its municipalities, counties and districts and the
officers and employees thereof.” St. 1978, c. 512.
8 General Laws c. 258, § 2, provides that governmental units
“shall be liable for injury or loss of property or personal
injury or death . . . in the same manner and to the same extent
as a private individual under like circumstances.” The language
is substantially the same as the Federal government’s waiver of
sovereign immunity. See 28 U.S.C. § 2674 (“The United States
shall be liable, respecting the provisions of this title
relating to tort claims, in the same manner and to the same
extent as a private individual under like circumstances . . .”).
8
Section 10 (j) bars “any claim based on an act or failure
to act to prevent or diminish the harmful consequences of a
condition or situation, including the violent or tortious
conduct of a third person, which is not originally caused by the
public employer or any other person acting on behalf of the
public employer.”9 G. L. c. 258, § 10 (j).
9 The Legislature carved out and permitted plaintiffs to
pursue some claims that would otherwise be covered by G. L.
c. 258, § 10 (j), by exempting certain claims from § 10 (j)’s
exemption from the act’s general waiver of sovereign immunity.
Pursuant to G. L. c. 258, § 10 (j) (1)-(4), the exemption shall
not apply to
“(1) any claim based on explicit and specific
assurances of safety or assistance, beyond general
representations that investigation or assistance will be or
has been undertaken, made to the direct victim or a member
of his family or household by a public employee, provided
that the injury resulted in part from reliance on those
assurances. A permit, certificate or report of findings of
an investigation or inspection shall not constitute such
assurances of safety or assistance; and
“(2) any claim based upon the intervention of a public
employee which causes injury to the victim or places the
victim in a worse position than he was in before the
intervention; and
“(3) any claim based on negligent maintenance of
public property; [and]
“(4) any claim by or on behalf of a patient for
negligent medical or other therapeutic treatment received
by the patient from a public employee.”
9
In other words,10 § 10 (j), which “was intended to provide
some substantial measure of immunity from tort liability” to
public employers, eliminates government liability for a public
employer’s act or failure to act to prevent harm from the
wrongful conduct of a third party unless the condition or
situation was “originally caused” by the public employer. Brum
v. Dartmouth, 428 Mass. 684, 692, 695 (1999).
To have “originally caused” a condition or situation for
the purposes of § 10 (j), the public employer must have taken an
affirmative action; a failure to act will not suffice.11 Id. at
695-696. In Brum, a public high school student was stabbed to
death in a classroom during the school day by one of three armed
individuals, after an earlier violent interaction involving the
assailants. Id. at 686. School officials had been informed
that the assailants, who had left the school grounds after the
altercation, planned to return and retaliate against certain
students, including the child who was ultimately killed. Id. at
686-687. The victim’s mother brought suit against the
municipality for its negligent failure to maintain adequate
10 “To say that § 10 (j) presents an interpretive quagmire
would be an understatement.” Brum, 428 Mass. at 692.
11 The question of original causation is separate from the
question of liability. Even when a court concludes that a
public employer has affirmatively acted so as to create original
causation such that it may be sued under the act, a plaintiff
still bears the burden of establishing the elements of whatever
tort claim he or she brings.
10
security measures at the school and failure to protect her son
despite being made aware of a known threat. Id. at 687. We
concluded that § 10 (j) precluded the municipality’s liability
for failure to prevent the killing absent an affirmative act by
a public employee in the operation of its schools. Id. at 696.
See Bonnie W. v. Commonwealth, 419 Mass. 122, 125-126 (1994)
(concluding that § 10 [j] barred claim based on negligent
failure to supervise parolee but permitted claim based on
negligently recommending his employment).
Furthermore, for the “original cause” language under
§ 10 (j) to apply, “the act must have materially contributed to
creating the specific ‘condition or situation’ that resulted in
the harm.” Kent v. Commonwealth, 437 Mass. 312, 319 (2002). In
Kent, we concluded that § 10 (j) required dismissal of a claim
against the parole board for its negligence in releasing a
convicted murderer who, eight years later, shot a police
officer. Id. at 313, 319-320. We concluded that the parole
board’s affirmative act did not materially contribute to the
police officer’s injuries. Id. at 319-320.
3. Application of § 10 (j) to plaintiffs’ tort claims.
The parties disagree as to whether the stated exception in
§ 10 (j) applies to the plaintiffs’ claims. The defendants
argue that the claims are precluded by § 10 (j) because
Matthew’s injuries were caused by the “violent or tortious
11
conduct of a third person.” The plaintiffs acknowledge that a
third party directly harmed Matthew, but argue that the school
district is not immune from liability because school employees
“originally caused” the dangerous situation that resulted in
Matthew’s injuries. See G. L. c. 258, § 10 (j). See also Brum,
428 Mass. at 692. Thus, we must determine whether the
plaintiffs allege that the school district employees took an
affirmative act that materially contributed to creating a
condition or situation that resulted in Matthew’s injuries. See
Kent, 437 Mass. at 319.
There can be little doubt that some actions by the public
defendants contributed indirectly to Matthew’s injuries, for
example, Matthew and his tormentors were required to attend
school and were placed in the same class. These actions,
however, “are too remote as a matter of law to be the original
cause” of Matthew’s injuries under § 10 (j) and therefore cannot
be said to have “materially contributed” to creating the
specific condition or situation resulting in Matthew’s injuries.
See Kent, 437 Mass. at 319.
In their complaint, the plaintiffs make numerous
allegations that the school district and its employees
negligently failed to protect Matthew or negligently failed to
12
diminish the harm caused by Matthew’s injuries.12 These claims
are barred by § 10 (j) because they originate from a failure to
act rather than an affirmative act. See Brum, 428 Mass. at 696.
In their brief, the plaintiffs highlight that the school’s
staff had a policy of having students line up in a particular
order outside school each morning before the start of the school
day without guidance or supervision. This, they argue, was an
affirmative act that resulted in Matthew and his classmate being
in close proximity and created the situation that led to
Matthew’s injuries.13 Putting aside the question whether this
12 The plaintiffs’ allegations include that the public
defendants were negligent for failing to investigate properly
the plaintiffs’ prior complaints of bullying and harassment of
Matthew and failing to implement the mandatory policies of the
school committee of Lynn designed to ensure a safe learning
environment. They further allege that the city of Lynn was
negligent in hiring, retaining, and supervising teachers and
liable for failing properly to instruct, train, and supervise
staff regarding the proper methods of implementing school
district antibullying policies.
13 The plaintiffs cite Gennari v. Reading Pub. Sch., 77
Mass. App. Ct. 762 (2010), to support their argument. There,
the Appeals Court held that a principal’s decision to hold
recess in a concrete courtyard was an “original cause” of the
situation leading to a student’s injury when a classmate pushed
the student and he struck his head on concrete. Id. at 765.
The court reasoned that “[r]unning, falling, and pushing are
understood, foreseeable, even inherent parts of . . . recess”
and therefore the causal link between the principal’s decision
and the injury was “not so remote as a matter of law” that her
decision was not an “original cause” within the meaning of
§ 10 (j). Id.
Gennari, which perhaps represents the outer limits of
conduct falling within the scope of what might be considered an
13
particular fact was adequately pleaded in the plaintiffs’
complaint,14 this allegation is, at bottom, another claim for
negligence based on an act that fails to prevent or diminish
harm by failing to keep Matthew and his bullies apart.
“[C]onditions that are, in effect, failures to prevent harm,
would undermine [the] principle purpose” of § 10 (j). Brum, 428
Mass. at 696. Effectively, the plaintiffs seek to hold the
school liable for not acting in a manner that ensured Matthew’s
safety. Such a claim is precluded under the act.
Conclusion. There is no question that bullying is a
serious issue. The tragedy that occurred in this case
highlights the emotional pain of day-to-day harassment suffered
“original cause” under § 10 (j), is readily distinguishable from
this case. In Gennari, the principal affirmatively chose to
hold recess in a concrete area rather than a safer alternative.
In contrast, as discussed infra, regardless of what the line-up
policy was, the claim here amounts to an alleged failure to act
to keep Matthew safe.
14 The complaint does not allege that Matthew had a
particular assigned spot in line. It simply states, “[W]hile
lining up at the beginning of the school day, Matthew Mumbauer
was violently shoved by [a classmate].” However, when Matthew
was deposed he stated that he was “assigned in the back.” See
Eigerman v. Putnam Invs., Inc., 450 Mass. 281, 285 n.6 (2007)
(“The only facts appropriate for consideration in deciding a
motion to dismiss are . . . those drawn from factual allegations
contained with the complaint or within attached exhibits”).
14
by those who are bullied, as well as the horrific physical
consequences that can result.15
In this case it appears, based upon the allegations of the
complaint, that those working at the elementary school could
have and should have done more to protect Matthew.
Nevertheless, the fact remains that the Legislature has imposed
restrictions on the act that exempt school districts from
liability. See Whitney, 373 Mass. at 210 (“on the subject of
sovereign immunity . . . barring any possible constitutional
infirmities, the Legislature will have the final word”).
The order of the Superior Court judge allowing the motion
to dismiss is affirmed.
So ordered.
15 An antibullying statute was enacted in 2010 and amended
in 2014. G. L. c. 71, § 37O, inserted by St. 2010, c. 92, § 5,
and amended through St. 2014, c. 86, §§ 1-4. Although it was
not in effect in the time frame relevant to this case, the
schools of the Commonwealth are now statutorily required to
address bullying. The antibullying statute prohibits bullying
on school grounds and requires school districts to “develop,
adhere to and update a plan to address bullying prevention and
intervention.” G. L. c. 71, § 37O (d) (1). The Department of
Elementary and Secondary Education (department) has the power to
“investigate certain alleged incidents of bullying,” determine
whether a school district has “properly implemented its
prevention plan,” and require the school district to take
actions to address any relevant findings that the department
makes. G. L. c. 71, § 37O (n). It remains to be seen whether
the regulatory mechanisms of the antibullying statute provide
sufficient incentives for schools to develop and adhere to
adequate measures to protect students from these harms. See
G. L. c. 71, § 37O; Brum, 428 Mass. at 709 (Ireland, J.,
concurring).