WEBVTT
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SJC 13361.
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Robert Herman and others,
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V, attorney general, and another.
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Okay, Attorney Lessig.
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Madam Chief Justice.
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May it please this court,
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my name is Lawrence Lessig, and with my co-counsel Ron Fein,
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we represent two sets of plaintiffs,
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challenging the attorney general's refusal
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to certify petition 2201, and-
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Seems that you're right about
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the literal language of Article 48,
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no later than the first Wednesday in August, 2022,
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is before the 2024 legislative session.
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That's right.
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And then you go to September,
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you can see that you gotta do the,
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not the 15 signatures, 10 signatures,
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but you've gotta be before
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the Secretary of State in September, 2023.
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That's right.
And then December, 2022.
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It's not a year and a half, or whatever.
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That's exactly right.
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So, my question is,
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why do we decide this constitutional case?
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Where's the actual controversy?
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Whatever doctrine you want to apply, ripeness.
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When we have this situation in the normal course,
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you got an injunction, and if the signatures get gathered,
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you get a hearing before the SJC.
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Why are we pontificating on this,
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without knowing whether it's ever going to be on the ballot?
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Well, Your Honor, you should not pontificate, for sure.
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Instead, you should recognize that in this case,
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our ability to proceed has been blocked
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by a ruling of the attorney general.
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And the attorney general is asking you to adopt a rule
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that would essentially ensure
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that every time a petition is denied,
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there's, in effect, a million-dollar filing fee,
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in order to bring a challenge to her petition,
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as petitioners alleged, and was not challenged,
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the costs beyond the ordinary costs
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of gathering signatures for a petition
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would be a million dollars
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just to have the ability to challenge her ruling.
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Now, this idea is based on a fundamental mistake
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in her argument.
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She says the court is obligated
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to impose an additional textual requirement,
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because the contemplation of the text and context
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was that the elections were annual,
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and therefore, to enter a initiative.
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I understand,
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the Article 74 Amendment, it takes care of that argument.
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That argument goes nowhere.
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Great, so then, the question is, from-
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Lockhart also counsels us
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not to decide constitutional questions unnecessarily.
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And if every 10-person petition you file,
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every 10-person gets together,
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they decide they wanna challenge
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some very interesting constitutional issue, or a silly one,
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'cause we get lots of silly ones, too.
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Doesn't the AG do
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the initial screening of that, by constitution,
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and they've screened it out, and you know,
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you're inviting this court into,
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again, every time 10 people have a disagreement
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about a constitutional issue, we may be brought into it.
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I mean, we can just wait,
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and see if you actually do have the votes,
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if you do get the signatures, can't we?
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Your Honor, the question is,
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from where does the power to obligate petitioners,
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to gather these signatures, derive from?
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It doesn't derive from Article 48.
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You have the right to gather the signatures,
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and they're gonna give you an injunction to do so.
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Right, Your Honor, they give us an injunction,
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but to force us to gather the signatures
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in the even-numbered year is, in effect,
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to force us to adopt
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a million-dollar filing fee in order to-
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Why is that the case?
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If you get to choose, Justice Lowy agrees with you,
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that you can file it the year before,
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and they're wrong on that.
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You get to choose when you do it,
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but we don't like
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to decide constitutional questions prematurely.
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So, we want you to get the signatures.
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You can get 'em whenever you want.
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And the AG does the initial screening, they found your,
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it violates the constitution, and we can leave it there,
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until you get enough signatures
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to make this a real issue for us.
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But your honor,
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where does the power to say
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we have to get the signatures come from,
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when this court decided Horton versus Attorney General.
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You have to get the signatures to change the law of that-
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That's right, but we have to get the signatures,
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in order to move the petition from
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the attorney general's office to the general court.
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There is nothing in Article 48
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that says we have to get the signatures
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to challenge the attorney general's determination,
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and that's what's at issue here.
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But it lines up, Article 48 gives you the line,
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when you can file with the Secretary of State.
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It's not any September, and any December.
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It's no earlier than the first Wednesday of September,
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before the assembling of the general court,
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into which they are to be introduced,
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into which they are to be introduced is 2024.
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Yes.
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So, it contemplates that
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that's where the signature is going to be
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in that period of time.
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Absolutely, but the question is,
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when are we allowed to challenge
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the attorney general's erroneous-
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When there's gonna be a real case
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with the signatures that you're gonna get on the ballot,
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either through an injunction, or because you got them.
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But Your Honor, there is a real case,
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when she denies our ability to gather signatures.
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Article 48 forbids
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the gathering of signatures without the showing,
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as this court's decision in Lockhart demonstrates,
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of irreparable harm from the failure to gather signatures.
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Her position was that we had to gather signatures last fall,
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and in gathering signatures last fall,
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we would have to get an injunction
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to evade the plain language of Article 48,
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that says that you can't gather-
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You don't have to get the signatures last fall.
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I know they said that you can get the signatures
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in September through December of '23, that's not right.
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You don't have to get the
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signatures last fall.
Okay, great.
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Then the question is,
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do we have to gather signatures under
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the cloud of this being a non-certified petition?
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Because that was her judgment.
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That is not consistent with the constitution,
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and that's not hypothetical.
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That judgment says that
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the ability of us to gather volunteers,
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or to gather people behind a movement
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has been disrupted by an erroneous constitutional judgment.
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Well, maybe, or it's a correct one,
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but we don't, you're bringing us into this fight very early,
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and requiring us to decide
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constitutional questions prematurely.
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Now we may have improvidently
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agreed to hear this, at this time.
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That may be an issue for us.
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But your honor,
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Horton versus Attorney General creates the obligation
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that this court will review
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the attorney general's determination.
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Horton didn't say anything about waiting
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until signatures were gathered,
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didn't force on us an obligation
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to bear the million-dollar filing fee,
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in order to have you make that determination.
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That determination is ripe when she makes
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an erroneous constitutional judgment,
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and the constitutional judgment
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is the plain application of Article 48.
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It's whether, under the standards of Associated Industries,
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it is certain that this is violating of-
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I see you have a very short period of time,
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so you're splitting your time or, I can't remember,
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but I just wanna make sure
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we don't lose you on the constitutional issue.
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Please.
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Given, I assume you're the Lessig
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who writes about all this stuff,
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so I hesitate
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to disagree with you,
(Justice laughs)
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but I find no support in,
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it seems to me that AGs clearly right that, you know,
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Citizens United created this sort of,
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impenetrable First Amendment armor around expenditures.
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Is there anything,
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and it keeps making the point repeatedly,
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I glanced at it again this morning,
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that this is not a contribution.
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So, where in Citizens United is support for this?
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Can you point me,
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'cause I, again, I hesitate to disagree with you,
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but I can't find it anywhere in there.
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Citizens United addresses limitations on expenditures,
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and the whole case here-
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But the whole thing is saying that
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expenditures are different than contributions.
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Yes.
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And that we're not gonna find quid pro quo
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in the expenditure world.
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We're gonna limit it, that quid pro quo,
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to the contribution world.
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Right.
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As I would outline the argument that we intend to make,
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my colleague Ron Fein
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will address the quid pro quo argument.
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And what I will address,
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is the argument that it's improper for the attorney general
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to restrict our having a petition,
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on the basis of a prediction about
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what the Supreme Court, or this court-
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That's not what they're doing.
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That Speechnow.org,
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or what we said in dicta in A1 Auto,
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They're rolling up their sleeves, and doing their job,
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and deciding whether what's been said out there
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about independent expenditures is violative,
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or not violative of free speech,
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which is their obligation under Article 48.
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And I would agree,
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if they were speaking about expenditures,
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but we are talking about contributions.
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This provision would limit contributions
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to independent expenditure PACs, and Citizen-
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Did you look at what chapter 55, section one,
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defined a contribution as, by any chance?
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In case you didn't,
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a contribution of money
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or anything of value to an individual,
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candidate, political committee, or person,
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acting on behalf of said individual,
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candidate, or political committee.
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Putting aside that in A1 Auto, we said that,
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we confirmed that making unlimited independent expenditures,
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as well as unlimited contributions
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to independent expenditure PACs,
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constitutes significant form of political expression.
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Putting that dicta aside,
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that's how we defined contribution.
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But your honor,
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that dicta is at the center
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of the attorney general's own letter.
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When she denied certification, she wrote,
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Massachusetts courts have not specifically
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weighed in on the constitutionality of laws
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limiting campaign contributions
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to independent expenditure PACs.
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She could have added,
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neither has the United States Supreme Court,
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and those two statements together
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should have resolved this case.
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But that's,
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I mean, the Supreme Court decision is extremely,
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I mean, they go on, and on about saying,
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I mean every expenditure has
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to have a contribution in it, right.
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You don't have money to expend,
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unless someone gave you money.
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That's right.
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So, you're essentially gonna gut
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the whole meaning of the expenditure thing,
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if you look at... (chuckles)
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Look, Your Honor, if we were before you,
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with a petition that said
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we wanted to limit independent expenditures,
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this would be an easy case.
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But as this court recognized in one 1A Auto,
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the court made a fundamental distinction,
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between expenditures and contributions.
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00:11:43.950 --> 00:11:45.960
And the question that we are teeing up,
273
00:11:45.960 --> 00:11:48.090
as has been teed up in other contexts,
274
00:11:48.090 --> 00:11:51.810
is whether contributions shall follow
275
00:11:51.810 --> 00:11:54.260
the same rule as the expenditure.
276
00:11:54.260 --> 00:11:55.920
[Justice Wendlandt] It's more complicated, right.
277
00:11:55.920 --> 00:11:58.710
It's contributions to the Super PAC.
278
00:11:58.710 --> 00:11:59.543
That's right.
279
00:11:59.543 --> 00:12:00.450
Right.
It's contributions
280
00:12:00.450 --> 00:12:01.560
to independent expenditure-
281
00:12:01.560 --> 00:12:04.830
Every federal court that has looked at the issue
282
00:12:04.830 --> 00:12:08.700
has said that's unconstitutional.
283
00:12:08.700 --> 00:12:10.407
That's right.
Okay.
284
00:12:10.407 --> 00:12:11.330
And Your Honor,
285
00:12:11.330 --> 00:12:12.780
here's the one contribution I hope you'll allow me
286
00:12:12.780 --> 00:12:15.330
to make in the argument today,
287
00:12:15.330 --> 00:12:18.690
every single federal court to consider this matter
288
00:12:18.690 --> 00:12:21.300
has concluded that, in fact,
289
00:12:21.300 --> 00:12:23.640
this is restricted by Citizens United.
290
00:12:23.640 --> 00:12:26.858
But in none of those lower federal court cases,
291
00:12:26.858 --> 00:12:31.410
did the court apply a principle of originalism? Not one.
292
00:12:31.410 --> 00:12:33.510
And the single most important fact
293
00:12:33.510 --> 00:12:36.390
about the United States Supreme Court over the past decade,
294
00:12:36.390 --> 00:12:37.620
is that over the past decade,
295
00:12:37.620 --> 00:12:40.620
originalism has become the dominant mode
296
00:12:40.620 --> 00:12:42.210
of interpreting the Constitution.
297
00:12:42.210 --> 00:12:43.710
It has given us an individual right
298
00:12:43.710 --> 00:12:45.780
to bear arms, reverse the rights in ROE.
299
00:12:45.780 --> 00:12:47.940
And so, the Baxter plaintiffs ask
300
00:12:47.940 --> 00:12:50.160
why that same principle doesn't apply
301
00:12:50.160 --> 00:12:52.080
in the context of campaign finance rules.
302
00:12:52.080 --> 00:12:53.130
They're not predicting,
303
00:12:53.130 --> 00:12:55.800
like you're saying the AG engaged in?
304
00:12:55.800 --> 00:12:56.790
Well, Your Honor,
305
00:12:56.790 --> 00:12:59.010
we've said the AG has predicted
306
00:12:59.010 --> 00:13:01.290
that when this question gets to the Supreme Court,
307
00:13:01.290 --> 00:13:03.630
the Supreme Court will conclude the same
308
00:13:03.630 --> 00:13:04.980
as it did in Citizens United.
309
00:13:04.980 --> 00:13:06.060
That is a prediction.
310
00:13:06.060 --> 00:13:08.280
We're giving you a reason to doubt that prediction.
311
00:13:08.280 --> 00:13:09.300
And in particular,
312
00:13:09.300 --> 00:13:11.940
this is the part I hope you'll allow me to contribute,
313
00:13:11.940 --> 00:13:15.573
because it's clear originalism would allow,
314
00:13:16.680 --> 00:13:20.970
would allow the regulation that this petition advances,
315
00:13:20.970 --> 00:13:22.710
it would allow regulations for corruption,
316
00:13:22.710 --> 00:13:24.570
beyond quid pro quo corruption.
317
00:13:24.570 --> 00:13:25.980
It would allow the kind of regulation
318
00:13:25.980 --> 00:13:28.110
that Chief Justice Budd was talking about
319
00:13:28.110 --> 00:13:30.870
in her concurrence in one 1A Auto,
320
00:13:30.870 --> 00:13:34.290
where she described the substitutes and agents principle.
321
00:13:34.290 --> 00:13:35.370
It would allow it,
322
00:13:35.370 --> 00:13:37.770
and we don't offer these arguments to say
323
00:13:37.770 --> 00:13:40.200
that this court must follow originalism,
324
00:13:40.200 --> 00:13:42.750
or even to predict that the Supreme Court
325
00:13:42.750 --> 00:13:44.190
will follow originalism.
326
00:13:44.190 --> 00:13:45.290
This is what we argue.
327
00:13:47.280 --> 00:13:52.050
When it is true that principles articulated by Justices
328
00:13:52.050 --> 00:13:54.000
on the United States Supreme Court,
329
00:13:54.000 --> 00:13:58.140
if applied consistently, would not block a petition,
330
00:13:58.140 --> 00:14:02.250
at the very least, that should constitute a genuine dispute,
331
00:14:02.250 --> 00:14:03.870
requiring the attorney general
332
00:14:03.870 --> 00:14:05.340
to allow the petition to go forward.
333
00:14:05.340 --> 00:14:07.527
Put differently, she should not block a petition,
334
00:14:07.527 --> 00:14:09.240
based on the prediction
335
00:14:09.240 --> 00:14:11.460
that Justices on the United States Supreme Court
336
00:14:11.460 --> 00:14:13.920
will not act in a principled way.
337
00:14:13.920 --> 00:14:15.930
If these are their principles,
338
00:14:15.930 --> 00:14:18.277
then in the language of Associated Industries,
339
00:14:18.277 --> 00:14:21.487
"It is certainly conceivable," quote unquote,
340
00:14:21.487 --> 00:14:23.580
"that they would follow their principles,
341
00:14:23.580 --> 00:14:26.310
or to permit plaintiff's petition to stand."
342
00:14:26.310 --> 00:14:27.630
Or to put it the other way,
343
00:14:27.630 --> 00:14:30.270
it is not inconceivable, is it,
344
00:14:30.270 --> 00:14:31.860
that justices on the Supreme Court
345
00:14:31.860 --> 00:14:34.260
will apply their principles consistently,
346
00:14:34.260 --> 00:14:35.850
and if they do,
347
00:14:35.850 --> 00:14:37.200
then there would be no basis
348
00:14:37.200 --> 00:14:39.930
for finding this unconstitutional,
349
00:14:39.930 --> 00:14:43.140
and in the standard of Associated Industries,
350
00:14:43.140 --> 00:14:45.480
which ask this court not to weigh
351
00:14:45.480 --> 00:14:47.340
the First Amendment standards,
352
00:14:47.340 --> 00:14:49.530
and to make an ultimate First Amendment judgment,
353
00:14:49.530 --> 00:14:52.830
but instead, to ask whether it's conceivable
354
00:14:52.830 --> 00:14:56.400
that this petition is constitutional,
355
00:14:56.400 --> 00:14:58.590
so that the people have a right to vote on it.
356
00:14:58.590 --> 00:15:01.230
There could be no doubt that under that standard,
357
00:15:01.230 --> 00:15:04.170
this petition should be allowed to proceed.
358
00:15:04.170 --> 00:15:07.440
I hope you are right that it's not
359
00:15:07.440 --> 00:15:11.820
an unreasonable belief.
(Justices and Lawrence laugh)
360
00:15:11.820 --> 00:15:13.637
Your Honor, I have personal experience.
361
00:15:13.637 --> 00:15:14.726
I know.
362
00:15:14.726 --> 00:15:15.559
I know.
Clerking for Justice Scalia,
363
00:15:15.559 --> 00:15:18.480
I can tell you, they can behave consistently,
364
00:15:18.480 --> 00:15:20.670
whether we perceive it or not.
(Justice Cypher chuckles)
365
00:15:20.670 --> 00:15:22.020
And if they did,
366
00:15:22.020 --> 00:15:24.420
then the type of corruption that again,
367
00:15:24.420 --> 00:15:26.550
Chief Justice Budd has described,
368
00:15:26.550 --> 00:15:30.570
could begin to be within the scope of what legislatures,
369
00:15:30.570 --> 00:15:32.850
or the people could regulate.
370
00:15:32.850 --> 00:15:34.620
And that opportunity to at least,
371
00:15:34.620 --> 00:15:36.900
give them the chance to say
372
00:15:36.900 --> 00:15:39.150
whether they're gonna be principled, or not,
373
00:15:39.150 --> 00:15:42.930
can only occur if courts like this court
374
00:15:42.930 --> 00:15:45.510
begin to recognize the actual gaps
375
00:15:45.510 --> 00:15:47.250
in the actual opinions.
376
00:15:47.250 --> 00:15:49.110
Because the court has not,
377
00:15:49.110 --> 00:15:51.390
the Supreme Court has not addressed
378
00:15:51.390 --> 00:15:55.230
the question of limitations on contributions
379
00:15:55.230 --> 00:15:57.570
to independent expenditure PACs,
380
00:15:57.570 --> 00:16:02.570
even if it has addressed limitations on expenditures.
381
00:16:02.700 --> 00:16:05.400
I'd like to allow my colleague to address now,
382
00:16:05.400 --> 00:16:07.783
the question of quid pro quo court corruption.
383
00:16:07.783 --> 00:16:08.693
[Chief Justice Budd] Thank you.
384
00:16:10.778 --> 00:16:11.611
Okay, 25.
385
00:16:13.830 --> 00:16:15.030
Thank you, Madam Chief Justice.
386
00:16:15.030 --> 00:16:15.863
May it please the court,
387
00:16:15.863 --> 00:16:18.120
Ronald Fein for the Herman Plaintiffs.
388
00:16:18.120 --> 00:16:19.650
Because the Herman plaintiffs agree
389
00:16:19.650 --> 00:16:21.750
with Professor Lessig, regarding mootness,
390
00:16:21.750 --> 00:16:23.820
I'd like to focus my time on two issues,
391
00:16:23.820 --> 00:16:25.260
the standard of review,
392
00:16:25.260 --> 00:16:27.420
and the quid pro quo corruption interest
393
00:16:27.420 --> 00:16:29.010
that this petition serves.
394
00:16:29.010 --> 00:16:32.700
The standard of review in this case is obvious impropriety,
395
00:16:32.700 --> 00:16:34.980
as stated in the Yankee Atomic Electric case,
396
00:16:34.980 --> 00:16:36.900
Associated Industries rephrase that
397
00:16:36.900 --> 00:16:39.210
as whether it is reasonably clear
398
00:16:39.210 --> 00:16:42.180
that it violates the freedom of speech,
399
00:16:42.180 --> 00:16:44.610
or in this case, any excluded matter,
400
00:16:44.610 --> 00:16:47.340
unless it is reasonably clear, then neither the AG,
401
00:16:47.340 --> 00:16:49.380
nor this court should prevent
402
00:16:49.380 --> 00:16:51.180
the proposal from moving forward.
403
00:16:51.180 --> 00:16:54.120
That's intended to be a threshold screening.
404
00:16:54.120 --> 00:16:56.460
Here, the single justice acknowledged that
405
00:16:56.460 --> 00:17:00.060
there were novel legal arguments presented on both sides.
406
00:17:00.060 --> 00:17:01.140
This is not clear,
407
00:17:01.140 --> 00:17:03.540
this is much more like in Associated Industries,
408
00:17:03.540 --> 00:17:06.090
where the court said we regard ourselves as fortunate
409
00:17:06.090 --> 00:17:08.460
that we need not attempt to resolve the uncertainty
410
00:17:08.460 --> 00:17:10.410
of the constitutionality of the proposed law,
411
00:17:10.410 --> 00:17:12.300
under the First Amendment.
412
00:17:12.300 --> 00:17:14.910
Here, what we have is an issue
413
00:17:14.910 --> 00:17:17.760
that has never been decided by any court
414
00:17:17.760 --> 00:17:19.830
with jurisdiction over Massachusetts.
415
00:17:19.830 --> 00:17:22.260
Not this court, not the US Supreme Court,
416
00:17:22.260 --> 00:17:23.820
not a superior court in Massachusetts-
417
00:17:23.820 --> 00:17:25.500
Did you know the-
Go ahead.
418
00:17:25.500 --> 00:17:29.340
You know the dicta in A1 Auto though, right?
419
00:17:29.340 --> 00:17:34.340
Where we said that Citizens United permitted corporations
420
00:17:35.100 --> 00:17:38.370
to engage in significant forms of political expression
421
00:17:38.370 --> 00:17:40.980
that was not allowed in Beaumont,
422
00:17:40.980 --> 00:17:42.060
when Beaumont was decided,
423
00:17:42.060 --> 00:17:45.660
that is, to make unlimited independent expenditures,
424
00:17:45.660 --> 00:17:49.230
as well as unlimited contributions
425
00:17:49.230 --> 00:17:52.350
to independent expenditure PACs.
426
00:17:52.350 --> 00:17:54.660
Your Honor, that dictum is in 1A Auto,
427
00:17:54.660 --> 00:17:55.800
but it is, in fact, dictum,
428
00:17:55.800 --> 00:17:57.690
because it was not the issue presented there,
429
00:17:57.690 --> 00:17:59.730
and it is an issue presented here.
430
00:17:59.730 --> 00:18:02.040
So, now that we've got it squarely on the table,
431
00:18:02.040 --> 00:18:03.030
we can acknowledge that,
432
00:18:03.030 --> 00:18:05.340
yes, there are lower federal court cases
433
00:18:05.340 --> 00:18:06.810
in other parts of the country.
434
00:18:06.810 --> 00:18:08.837
Seventh Circuit, Ninth Circuit, Second Circuit,
435
00:18:08.837 --> 00:18:10.612
that have ruled that way-
436
00:18:10.612 --> 00:18:11.670
It's not just the lower federal courts.
437
00:18:11.670 --> 00:18:15.240
I mean, I've got Citizens United in front of me.
438
00:18:15.240 --> 00:18:17.280
Tell me where, I'm just reading,
439
00:18:17.280 --> 00:18:19.290
I can pick out 10 of these.
440
00:18:19.290 --> 00:18:21.570
The absence of prearrangement and coordination
441
00:18:21.570 --> 00:18:24.150
of an expenditure with the candidate, or his agent,
442
00:18:24.150 --> 00:18:25.680
not only undermines the value
443
00:18:25.680 --> 00:18:27.390
of the expenditure to the candidate,
444
00:18:27.390 --> 00:18:29.280
but also alleviates the danger
445
00:18:29.280 --> 00:18:32.163
that expenditures will be given as a quid pro quo.
446
00:18:33.000 --> 00:18:36.630
There's tons of statements in Citizens United.
447
00:18:36.630 --> 00:18:38.880
Whether you like Citizens United or not,
448
00:18:38.880 --> 00:18:39.930
there are tons of statements
449
00:18:39.930 --> 00:18:44.550
that say expenditures are not quid pro quo issues.
450
00:18:44.550 --> 00:18:48.750
It may be silly reasoning, but it's the reasoning.
451
00:18:48.750 --> 00:18:52.890
So, I don't understand how you're getting around it,
452
00:18:52.890 --> 00:18:56.220
by saying the contribution to the PAC
453
00:18:56.220 --> 00:18:59.370
isn't a different category,
454
00:18:59.370 --> 00:19:00.750
'cause you can't have expenditures
455
00:19:00.750 --> 00:19:02.310
without contributions to the,
456
00:19:02.310 --> 00:19:04.860
they're not the same as contributions to the candidate.
457
00:19:04.860 --> 00:19:07.254
They're different. They're, well go ahead.
458
00:19:07.254 --> 00:19:08.274
Thank you,
459
00:19:08.274 --> 00:19:09.107
Your Honor.
And also,
460
00:19:09.107 --> 00:19:11.880
tell me in Citizens United what I can rely on,
461
00:19:11.880 --> 00:19:13.830
because I've just got the text here.
462
00:19:13.830 --> 00:19:16.530
Sure, I would say Citizens United and McCutcheon,
463
00:19:16.530 --> 00:19:17.430
which came after it,
464
00:19:17.430 --> 00:19:18.720
which explicitly upheld
465
00:19:18.720 --> 00:19:20.970
the authority to regulate contributions
466
00:19:20.970 --> 00:19:22.740
in the interest of preventing quid pro quo corruption-
467
00:19:22.740 --> 00:19:27.740
Contributions to independent PACs, Super PACs?
468
00:19:28.440 --> 00:19:29.273
Your Honor,
469
00:19:29.273 --> 00:19:30.660
if I could walk you through a concrete example
470
00:19:30.660 --> 00:19:32.040
of how this would actually play out.
471
00:19:32.040 --> 00:19:33.390
Let's take as given,
472
00:19:33.390 --> 00:19:35.220
that Citizens United has held
473
00:19:35.220 --> 00:19:37.110
that independent expenditures themselves
474
00:19:37.110 --> 00:19:40.410
cannot be part of a quid pro quo transaction.
475
00:19:40.410 --> 00:19:41.760
So, here's the situation.
476
00:19:41.760 --> 00:19:44.520
So, he is a donor,
477
00:19:44.520 --> 00:19:48.930
he wants to make a big spend in favor of a candidate.
478
00:19:48.930 --> 00:19:49.763
I'm sorry for doing this,
479
00:19:49.763 --> 00:19:51.690
but you are now a politician,
480
00:19:51.690 --> 00:19:53.850
and you are running for office, okay?
481
00:19:53.850 --> 00:19:57.540
And I am the person who's running a Super PAC, okay?
482
00:19:57.540 --> 00:20:00.750
Now I am an expert in scripting TV ads,
483
00:20:00.750 --> 00:20:03.270
buying media time, bidding on radio slots,
484
00:20:03.270 --> 00:20:04.920
Facebook search terms, okay?
485
00:20:04.920 --> 00:20:07.200
I'm not gonna talk to the candidate.
486
00:20:07.200 --> 00:20:09.180
I'm gonna spend a million dollars to support her.
487
00:20:09.180 --> 00:20:10.860
I'm not gonna talk to her at all,
488
00:20:10.860 --> 00:20:12.780
because that would be coordinating,
489
00:20:12.780 --> 00:20:14.310
and then my expenditures would count
490
00:20:14.310 --> 00:20:16.680
as coordinated expenditures, which are contributions.
491
00:20:16.680 --> 00:20:19.350
So, there's no quid pro quo happening between me and her.
492
00:20:19.350 --> 00:20:21.960
He is running a widget factory,
493
00:20:21.960 --> 00:20:24.660
and he wants her to vote yes on the widgets bill.
494
00:20:24.660 --> 00:20:27.900
So, he is gonna talk to her, without me even involved.
495
00:20:27.900 --> 00:20:28.980
And he's gonna say,
496
00:20:28.980 --> 00:20:31.830
I'm gonna make a million-dollar contribution
497
00:20:31.830 --> 00:20:34.290
to the Super PAC that supports your reelection,
498
00:20:34.290 --> 00:20:36.330
if you agree to vote yes on the widgets bill.
499
00:20:36.330 --> 00:20:39.150
She can say yes to that, that's quid pro quo bribery.
500
00:20:39.150 --> 00:20:41.610
The Super PAC is actually not even involved,
501
00:20:41.610 --> 00:20:42.570
it doesn't need to be.
502
00:20:42.570 --> 00:20:43.403
That actually happened
503
00:20:43.403 --> 00:20:45.450
in an actual federal bribery case
504
00:20:45.450 --> 00:20:47.230
that we cited in our briefs, the Menendez case,
505
00:20:47.230 --> 00:20:51.990
where the briber bribed the politician allegedly,
506
00:20:51.990 --> 00:20:54.600
without any involvement
507
00:20:54.600 --> 00:20:55.890
by the independent expenditure PAC.
508
00:20:55.890 --> 00:20:58.980
So, the independent expenditures are not corrupting,
509
00:20:58.980 --> 00:21:02.370
but the conversation between the donor and the politician
510
00:21:02.370 --> 00:21:04.410
can be part of quid pro quo corruption.
511
00:21:04.410 --> 00:21:07.440
Now, under the Speechnow line of cases,
512
00:21:07.440 --> 00:21:09.210
which all arose immediately after
513
00:21:09.210 --> 00:21:11.580
Citizens United, 2010, '11, '12,
514
00:21:11.580 --> 00:21:13.710
Super PACs didn't even exist at that time.
515
00:21:13.710 --> 00:21:18.000
By the way, your petition isn't directed at that.
516
00:21:18.000 --> 00:21:19.260
It's directed at just,
517
00:21:19.260 --> 00:21:22.800
any expenditure over $5,000 from him to you, right?
518
00:21:22.800 --> 00:21:27.510
Or is there this express bribery component to this?
519
00:21:27.510 --> 00:21:28.440
Or is it-
Your Honor-
520
00:21:28.440 --> 00:21:30.790
Is every, any $5,000,
521
00:21:30.790 --> 00:21:33.780
anything over $5,000 is banned, right?
522
00:21:33.780 --> 00:21:35.730
All contributions are prophylactic,
523
00:21:35.730 --> 00:21:38.070
contribution limits are prophylactic,
524
00:21:38.070 --> 00:21:39.030
and that's the basis on which
525
00:21:39.030 --> 00:21:40.320
the Supreme Court has upheld them.
526
00:21:40.320 --> 00:21:42.510
Just like you could make in theory,
527
00:21:42.510 --> 00:21:43.893
you could write up-
528
00:21:43.893 --> 00:21:45.750
So, isn't it clearly over-board?
529
00:21:45.750 --> 00:21:48.990
I mean, you're worried about this one thing,
530
00:21:48.990 --> 00:21:50.580
where they're secretly telling you,
531
00:21:50.580 --> 00:21:53.250
I'm gonna give so-and-so to avoid this,
532
00:21:53.250 --> 00:21:55.020
but that's not what your bill says.
533
00:21:55.020 --> 00:21:56.610
Your bill is directed at
534
00:21:56.610 --> 00:21:58.890
every contribution over $5,000, right?
535
00:21:58.890 --> 00:22:00.180
Well, just like the contribution limits
536
00:22:00.180 --> 00:22:02.280
to candidates are limited at $1,000.
537
00:22:02.280 --> 00:22:03.960
No one is saying that all contributions
538
00:22:03.960 --> 00:22:06.420
of 1,001 to a candidate would be bribes,
539
00:22:06.420 --> 00:22:09.420
but the contribution limits are authorized at $1,000,
540
00:22:09.420 --> 00:22:12.090
because they prevent quid pro quo corruption,
541
00:22:12.090 --> 00:22:14.670
or just as importantly, its appearance.
542
00:22:14.670 --> 00:22:16.890
And so, that's the basis for regulating
543
00:22:16.890 --> 00:22:18.504
contribution limits under one 1A.
544
00:22:18.504 --> 00:22:19.470
They say there was a carve-out
545
00:22:19.470 --> 00:22:20.303
for just what you're talking about.
546
00:22:20.303 --> 00:22:22.710
Wouldn't that make your whole petition
547
00:22:22.710 --> 00:22:26.669
over-board and sweeping in all kinds of protected speech,
548
00:22:26.669 --> 00:22:29.190
under Citizens United?
549
00:22:29.190 --> 00:22:33.720
So, even if we did recognize your little hypothetical here,
550
00:22:33.720 --> 00:22:35.730
which is of some concern,
551
00:22:35.730 --> 00:22:40.730
you're preventing any kind of contribution to the PAC,
552
00:22:40.890 --> 00:22:42.480
which seems to fall right
553
00:22:42.480 --> 00:22:46.410
smack into what Citizens United doesn't like, right?
554
00:22:46.410 --> 00:22:48.060
Your Honor, it's the exact same analogy
555
00:22:48.060 --> 00:22:50.100
as contribution limits to candidates.
556
00:22:50.100 --> 00:22:52.980
A $1,001 contribution to a candidate
557
00:22:52.980 --> 00:22:55.260
in Massachusetts is illegal,
558
00:22:55.260 --> 00:22:57.330
even though most of them wouldn't be bribes.
559
00:22:57.330 --> 00:22:59.850
And that's because the contribution limit is defensible,
560
00:22:59.850 --> 00:23:02.730
on the basis that it helps prevent quid pro quo corruption.
561
00:23:02.730 --> 00:23:04.530
Now here we have a case where under current law,
562
00:23:04.530 --> 00:23:07.020
you can make a $10 million contribution
563
00:23:07.020 --> 00:23:09.600
to a Super PAC supporting a candidate.
564
00:23:09.600 --> 00:23:11.490
And without this law,
565
00:23:11.490 --> 00:23:13.980
the case law that the attorney general is relying on,
566
00:23:13.980 --> 00:23:17.370
says that has no possible corrupting value,
567
00:23:17.370 --> 00:23:18.930
and that doesn't withstand scrutiny.
568
00:23:18.930 --> 00:23:20.190
It's not logical,
569
00:23:20.190 --> 00:23:23.130
and it's contradicted by both the actual bribery cases
570
00:23:23.130 --> 00:23:24.360
that we've cited in our brief,
571
00:23:24.360 --> 00:23:26.700
and the appearance of quid pro quo corruption
572
00:23:26.700 --> 00:23:28.830
that the public perceives documented in surveys-
573
00:23:28.830 --> 00:23:31.350
And that's why Citizens United has been
574
00:23:31.350 --> 00:23:32.850
condemned so intensely,
575
00:23:32.850 --> 00:23:35.583
but it doesn't mean we get to revisit that.
576
00:23:36.450 --> 00:23:37.860
Your Honor, this petition does not
577
00:23:37.860 --> 00:23:40.920
contradict Citizens United as properly interpreted,
578
00:23:40.920 --> 00:23:43.980
which says that the expenditures may not be corrupting,
579
00:23:43.980 --> 00:23:45.480
but contributions can be,
580
00:23:45.480 --> 00:23:48.360
because the contributor can talk to the politician,
581
00:23:48.360 --> 00:23:50.040
even if the expender can't.
582
00:23:50.040 --> 00:23:52.980
Any case law in the country, at all, that we can look at,
583
00:23:52.980 --> 00:23:56.550
where a contribution to one of these PACs
584
00:23:56.550 --> 00:23:58.770
is treated like a contribution
585
00:23:58.770 --> 00:24:01.890
to a political candidate,
586
00:24:01.890 --> 00:24:03.210
as opposed to being part of
587
00:24:03.210 --> 00:24:06.780
the expenditure analysis, in any case,
588
00:24:06.780 --> 00:24:08.910
I know there's 30 going the other way.
589
00:24:08.910 --> 00:24:09.743
Just give us one case
590
00:24:09.743 --> 00:24:11.790
that we can look at to helps support us.
591
00:24:11.790 --> 00:24:13.260
Something very close to that, Your Honor,
592
00:24:13.260 --> 00:24:18.120
which is in Republican National Committee versus Louisiana,
593
00:24:18.120 --> 00:24:19.920
which is one of the cases cited in the briefs.
594
00:24:19.920 --> 00:24:20.820
It's in the brief?
595
00:24:20.820 --> 00:24:21.780
It's cited in our briefs.
596
00:24:21.780 --> 00:24:26.780
It's a Republican Party of Louisiana versus FEC.
597
00:24:27.180 --> 00:24:30.150
It's a DC Circuit, or three-judged court case,
598
00:24:30.150 --> 00:24:32.520
that was summarily affirmed by the Supreme Court.
599
00:24:32.520 --> 00:24:33.990
It's very close to your scenario.
600
00:24:33.990 --> 00:24:37.560
It involves the soft money limits in federal law,
601
00:24:37.560 --> 00:24:39.330
which say that in certain cases,
602
00:24:39.330 --> 00:24:41.850
political parties can spend money independently,
603
00:24:41.850 --> 00:24:43.560
without coordination, that is the question.
604
00:24:43.560 --> 00:24:47.070
And the Chief Judge, Srinivasan of the DC circuit,
605
00:24:47.070 --> 00:24:50.280
said that the inducement comes not from the spending,
606
00:24:50.280 --> 00:24:51.113
which is independent,
607
00:24:51.113 --> 00:24:53.820
this is a 2017 case, well after Citizens United,
608
00:24:53.820 --> 00:24:56.220
but rather from the contribution being made,
609
00:24:56.220 --> 00:24:57.450
in the first place.
610
00:24:57.450 --> 00:24:59.910
Now, again, I don't think that we need
611
00:24:59.910 --> 00:25:02.220
to have circuit cases in support of this.
612
00:25:02.220 --> 00:25:05.010
Associated Industries didn't cite a single circuit case.
613
00:25:05.010 --> 00:25:06.690
Neither did Yankee Atomic Electric,
614
00:25:06.690 --> 00:25:09.330
'cause they just looked to Supreme Court case law,
615
00:25:09.330 --> 00:25:11.160
and this court's own case law.
616
00:25:11.160 --> 00:25:13.860
But to the extent that there is a circuit case,
617
00:25:13.860 --> 00:25:15.199
that is the most helpful
618
00:25:15.199 --> 00:25:18.480
that I could think of right now.
619
00:25:18.480 --> 00:25:20.550
So, I see that my time is over,
620
00:25:20.550 --> 00:25:23.190
but if I may have another minute or two,
621
00:25:23.190 --> 00:25:24.930
I'd like to just wrap up,
622
00:25:24.930 --> 00:25:28.710
which is that the existence of
623
00:25:28.710 --> 00:25:31.140
the potential of quid pro quo corruption,
624
00:25:31.140 --> 00:25:32.400
through Super PACs,
625
00:25:32.400 --> 00:25:35.460
was theoretically comprehensible in 2010,
626
00:25:35.460 --> 00:25:37.020
when Speechnow was decided.
627
00:25:37.020 --> 00:25:38.520
But it may not have been as apparent,
628
00:25:38.520 --> 00:25:41.490
because no one really understood how these would evolve.
629
00:25:41.490 --> 00:25:45.180
Those laws challenged in the set of cases from 2010 to 2012,
630
00:25:45.180 --> 00:25:46.170
they weren't deliberate,
631
00:25:46.170 --> 00:25:48.450
they weren't specifically regulating contributions
632
00:25:48.450 --> 00:25:49.920
to independent expenditure PACs.
633
00:25:49.920 --> 00:25:51.900
They were pre-2010 laws,
634
00:25:51.900 --> 00:25:53.640
that were challenged as applied
635
00:25:53.640 --> 00:25:55.260
to independent expenditure committees.
636
00:25:55.260 --> 00:25:57.540
Nobody had seen what had happened with these.
637
00:25:57.540 --> 00:25:59.910
In fact, attorney general of the United States
638
00:25:59.910 --> 00:26:03.240
declined to appeal Speechnow to the US Supreme Court,
639
00:26:03.240 --> 00:26:04.860
because he said it would affect only
640
00:26:04.860 --> 00:26:07.380
a small subset of contributions.
641
00:26:07.380 --> 00:26:09.540
We've now seen to the contrary,
642
00:26:09.540 --> 00:26:11.940
that contributions to independent expenditure PACs
643
00:26:11.940 --> 00:26:15.360
dwarf direct candidate contributions, in many elections.
644
00:26:15.360 --> 00:26:16.560
And, why not?
645
00:26:16.560 --> 00:26:18.870
Because you can make a $10 million contribution,
646
00:26:18.870 --> 00:26:21.060
instead of a $1,000 contribution.
647
00:26:21.060 --> 00:26:22.380
The Boston mayoral election,
648
00:26:22.380 --> 00:26:25.620
we saw $1 million contribution by a single individual,
649
00:26:25.620 --> 00:26:27.900
when you could only contribute a thousand dollars
650
00:26:27.900 --> 00:26:30.180
directly to a candidate.
651
00:26:30.180 --> 00:26:34.080
We now have the experience of over a decade of Super PACs,
652
00:26:34.080 --> 00:26:36.450
that unfortunately came after these decisions.
653
00:26:36.450 --> 00:26:38.550
We've seen actual bribery cases
654
00:26:38.550 --> 00:26:40.470
coming through donations to Super PACs.
655
00:26:40.470 --> 00:26:42.930
We've seen public opinion surveys,
656
00:26:42.930 --> 00:26:45.000
which contribute to the appearance of corruption.
657
00:26:45.000 --> 00:26:47.250
And if this initiative is allowed to go to the ballot,
658
00:26:47.250 --> 00:26:49.320
I predict we would see
659
00:26:49.320 --> 00:26:51.000
an overwhelming public vote and support,
660
00:26:51.000 --> 00:26:53.280
which would itself be evidentiary
661
00:26:53.280 --> 00:26:55.890
of the appearance of quid pro quo corruption.
662
00:26:55.890 --> 00:26:58.440
I just can't find this site you're talking about.
663
00:26:58.440 --> 00:27:00.060
I'm looking at your brief.
664
00:27:00.060 --> 00:27:00.893
Can I (indistinct).
665
00:27:00.893 --> 00:27:02.013
Which case is it?
666
00:27:03.840 --> 00:27:04.673
Sure.
667
00:27:13.440 --> 00:27:17.582
It's Republican Party of Louisiana versus FEC,
668
00:27:17.582 --> 00:27:21.150
137 Supreme Court Reporter 2178.
669
00:27:21.150 --> 00:27:23.430
We cited page 45 of our-
670
00:27:23.430 --> 00:27:24.600
I thought you said it was a DC,
671
00:27:24.600 --> 00:27:26.880
so it's a US Supreme Court case?
672
00:27:26.880 --> 00:27:29.253
It was I believe a,
673
00:27:30.870 --> 00:27:32.423
it's either a three-judged court,
674
00:27:32.423 --> 00:27:36.453
or a DC circuit case that was summarily affirmed.
675
00:27:37.530 --> 00:27:39.772
And following McConnell-
Okay, so,
676
00:27:39.772 --> 00:27:42.879
we can find the site from the Supreme Court case?
677
00:27:42.879 --> 00:27:43.712
Okay, I gotcha.
Yeah,
678
00:27:43.712 --> 00:27:45.180
and it said that the inducement came from
679
00:27:45.180 --> 00:27:47.010
the contribution to the soft,
680
00:27:47.010 --> 00:27:48.090
and again, soft money,
681
00:27:48.090 --> 00:27:50.160
much like independent expenditure PACs,
682
00:27:50.160 --> 00:27:53.160
is not supposed to be coordinated with the candidates.
683
00:27:53.160 --> 00:27:55.260
So, in conclusion,
684
00:27:55.260 --> 00:27:59.250
this is anything but reasonably clear at this stage.
685
00:27:59.250 --> 00:28:02.760
Now this court finding that it is not reasonably clear
686
00:28:02.760 --> 00:28:04.350
that it violates Article 16,
687
00:28:04.350 --> 00:28:07.050
would allow this court to preserve its options.
688
00:28:07.050 --> 00:28:08.970
It would not foreclose this court,
689
00:28:08.970 --> 00:28:10.290
if the initiative passes,
690
00:28:10.290 --> 00:28:14.070
from revisiting that finding upon a full factual record.
691
00:28:14.070 --> 00:28:16.350
And as this court said in Associated Industries,
692
00:28:16.350 --> 00:28:18.480
this is only the first opportunity
693
00:28:18.480 --> 00:28:21.450
for the constitutionality to be attacked.
694
00:28:21.450 --> 00:28:22.470
In conclusion,
695
00:28:22.470 --> 00:28:24.240
we ask that this court find that
696
00:28:24.240 --> 00:28:26.310
it is not obviously improper,
697
00:28:26.310 --> 00:28:27.630
that it is not reasonably clear
698
00:28:27.630 --> 00:28:31.907
that this petition violates Article 16, and I thank you.
699
00:28:31.907 --> 00:28:32.850
[Chief Justice Budd] Okay, thank you.
700
00:28:32.850 --> 00:28:34.250
All right, Attorney Sterman.
701
00:28:41.610 --> 00:28:43.560
Good morning, Your Honors, and may it please the court.
702
00:28:43.560 --> 00:28:45.900
My name is Ann Sterman, assistant attorney general,
703
00:28:45.900 --> 00:28:47.310
appearing today on behalf of
704
00:28:47.310 --> 00:28:49.920
the attorney general and Secretary of Commonwealth,
705
00:28:49.920 --> 00:28:52.923
and with me is Assistant Attorney General Adam Hornstein.
706
00:28:54.120 --> 00:28:55.320
Your Honor, this court should
707
00:28:55.320 --> 00:28:57.270
decline the petitioner's request
708
00:28:57.270 --> 00:29:00.210
for what is, essentially, an advisory opinion,
709
00:29:00.210 --> 00:29:02.190
as to whether or not their proposed law
710
00:29:02.190 --> 00:29:03.810
addresses a matter excluded from
711
00:29:03.810 --> 00:29:06.660
the initiative by Article 48.
712
00:29:06.660 --> 00:29:09.120
Their ahistorical justification for their request
713
00:29:09.120 --> 00:29:11.910
runs headlong into a number of practical reasons
714
00:29:11.910 --> 00:29:13.350
and sound prudential reasons
715
00:29:13.350 --> 00:29:14.640
why this court should adhere
716
00:29:14.640 --> 00:29:16.650
to its practice of declining
717
00:29:16.650 --> 00:29:19.050
to wade into moot constitutional questions.
718
00:29:19.050 --> 00:29:21.300
Yeah, the problem is, it's not really moot.
719
00:29:22.560 --> 00:29:24.960
I get we shouldn't be messing around with
720
00:29:24.960 --> 00:29:27.273
theoretical constitutional issues,
721
00:29:28.860 --> 00:29:32.220
and that may be a reason why we shouldn't decide this case,
722
00:29:32.220 --> 00:29:37.220
but it meets the language of the constitutional provision.
723
00:29:37.860 --> 00:29:40.440
It's done whatever it is, no earlier,
724
00:29:40.440 --> 00:29:41.400
I can't remember the no later,
725
00:29:41.400 --> 00:29:46.400
it meets the requirements, and it's a live issue,
726
00:29:46.590 --> 00:29:50.760
if they actually can get the signatures for it,
727
00:29:50.760 --> 00:29:53.280
and we don't usually sort of, sit around with,
728
00:29:53.280 --> 00:29:55.110
I mean, I understand their point.
729
00:29:55.110 --> 00:29:57.600
It's gonna be harder to collect the signatures,
730
00:29:57.600 --> 00:29:59.940
I'm not sure I feel that should compel us
731
00:29:59.940 --> 00:30:02.070
into deciding an incredibly novel,
732
00:30:02.070 --> 00:30:04.170
difficult constitutional issue,
733
00:30:04.170 --> 00:30:05.760
that probably will get us
734
00:30:05.760 --> 00:30:08.070
smacked down by the US Supreme Court.
735
00:30:08.070 --> 00:30:11.550
But can we really do that?
(Justice Lowy chuckles)
736
00:30:11.550 --> 00:30:15.720
If this is before us, and we don't agree with you,
737
00:30:15.720 --> 00:30:18.840
that it has to be filed the year later,
738
00:30:18.840 --> 00:30:20.370
do we have to decide the case,
739
00:30:20.370 --> 00:30:23.040
or, I mean, we don't have to do anything, I guess,
740
00:30:23.040 --> 00:30:26.010
but what do we do with a case that isn't moot?
741
00:30:26.010 --> 00:30:27.510
'Cause I don't find it moot.
742
00:30:27.510 --> 00:30:32.263
And Lockhart is an odd-year case, so that doesn't help.
743
00:30:32.263 --> 00:30:34.350
Lockhart is an odd-year case,
744
00:30:34.350 --> 00:30:35.760
but it did address also,
745
00:30:35.760 --> 00:30:38.160
some of the same or similar arguments
746
00:30:38.160 --> 00:30:40.230
to what the petitioners here raised.
747
00:30:40.230 --> 00:30:42.600
In Lockhart, as in some of the cases
748
00:30:42.600 --> 00:30:43.800
in which the single justice
749
00:30:43.800 --> 00:30:46.880
has entered the injunction to allow petitioners
750
00:30:46.880 --> 00:30:49.230
of a declined petition to gather signatures,
751
00:30:49.230 --> 00:30:51.720
an argument was advanced as to the difficulty
752
00:30:51.720 --> 00:30:53.820
of gathering signatures on a petition,
753
00:30:53.820 --> 00:30:57.120
for which the AG has not granted certification.
754
00:30:57.120 --> 00:30:59.550
In Lockhart, although it was an odd year,
755
00:30:59.550 --> 00:31:01.350
petitioners made the point that they could
756
00:31:01.350 --> 00:31:05.340
resubmit the petition again, the following year,
757
00:31:05.340 --> 00:31:06.600
and none of those reasons
758
00:31:06.600 --> 00:31:08.730
did this court find compelling enough
759
00:31:08.730 --> 00:31:12.120
to determine that the question was not moot, so-
760
00:31:12.120 --> 00:31:14.370
But Lockhart, going to Justice Kafker's point,
761
00:31:14.370 --> 00:31:16.140
I do not see how this is moot.
762
00:31:16.140 --> 00:31:18.520
I don't see how Lockhart helps you un-mootness.
763
00:31:18.520 --> 00:31:22.620
Here, there is a complete recognition on an odd-year case,
764
00:31:22.620 --> 00:31:25.290
that they weren't going to make the December signatures
765
00:31:25.290 --> 00:31:26.940
to the Secretary of State,
766
00:31:26.940 --> 00:31:30.660
so the issue is not moot,
767
00:31:30.660 --> 00:31:33.123
so going back to Justice Kafker's case,
768
00:31:35.100 --> 00:31:37.020
maybe I shouldn't say pontificate,
769
00:31:37.020 --> 00:31:40.410
but do we address this issue?
770
00:31:40.410 --> 00:31:42.840
Is there an actual controversy to resolve?
771
00:31:42.840 --> 00:31:44.040
There's a way to do this,
772
00:31:44.040 --> 00:31:48.240
which is to get an injunction, and gather the signatures,
773
00:31:48.240 --> 00:31:51.570
and if you make 'em, have it heard by the court.
774
00:31:51.570 --> 00:31:52.830
I think that's right, Your Honor.
775
00:31:52.830 --> 00:31:54.390
And the most important point here
776
00:31:54.390 --> 00:31:56.460
is the point that this court should not
777
00:31:56.460 --> 00:31:58.110
reach the constitutional question,
778
00:31:58.110 --> 00:31:59.640
and the vacuum at which the petitioners
779
00:31:59.640 --> 00:32:01.247
are asking this court to reach it.
780
00:32:01.247 --> 00:32:02.303
So, in the alternative-
Okay, so, but,
781
00:32:02.303 --> 00:32:04.827
how do we, okay, I get that,
782
00:32:04.827 --> 00:32:05.850
and we wanna avoid
783
00:32:05.850 --> 00:32:08.190
deciding constitutional issues unnecessarily,
784
00:32:08.190 --> 00:32:10.350
particularly difficult ones.
785
00:32:10.350 --> 00:32:13.563
But the cases before us,
786
00:32:15.330 --> 00:32:17.823
the issue was alive when we took it,
787
00:32:20.730 --> 00:32:23.130
you know, if you're wrong on the first point,
788
00:32:23.130 --> 00:32:26.310
the case is not moot, it's before us.
789
00:32:26.310 --> 00:32:30.810
So, how does it read, and assume the following extra step.
790
00:32:30.810 --> 00:32:32.970
We disagree with you,
791
00:32:32.970 --> 00:32:35.820
that it couldn't be filed a year ahead of time,
792
00:32:35.820 --> 00:32:38.310
but we do agree we shouldn't be
793
00:32:38.310 --> 00:32:40.140
deciding cases unnecessarily,
794
00:32:40.140 --> 00:32:45.140
and that, you know, get the signatures.
795
00:32:45.180 --> 00:32:47.673
You want to change the law of the commonwealth?
796
00:32:48.797 --> 00:32:51.000
You know, you gotta spend money to change it,
797
00:32:51.000 --> 00:32:54.000
'cause you're not the elected officials of the commonwealth,
798
00:32:54.000 --> 00:32:55.530
and we don't let 10 people
799
00:32:55.530 --> 00:32:59.250
dictate whether anybody does this,
800
00:32:59.250 --> 00:33:01.710
so how do we decide this case? (chuckles)
801
00:33:01.710 --> 00:33:03.330
How does that write?
802
00:33:03.330 --> 00:33:04.410
So, in that event,
803
00:33:04.410 --> 00:33:06.420
I think, Your Honors would find the matter
804
00:33:06.420 --> 00:33:08.910
is not ripe for adjudication for this court,
805
00:33:08.910 --> 00:33:11.790
because the petitioners have not demonstrated
806
00:33:11.790 --> 00:33:14.760
the requisite public support
807
00:33:14.760 --> 00:33:16.950
in the form of the gathering of signatures
808
00:33:16.950 --> 00:33:18.690
that is required by Article 48.
809
00:33:18.690 --> 00:33:20.913
Where is that in Article 48?
810
00:33:22.920 --> 00:33:24.540
That the petitioners must gather
811
00:33:24.540 --> 00:33:26.910
their signatures in order to get review from this court?
812
00:33:26.910 --> 00:33:27.743
Yes.
813
00:33:27.743 --> 00:33:29.198
Candidly, Your Honor, it's not.
814
00:33:29.198 --> 00:33:30.031
[Justice Wendlandt] Right.
815
00:33:30.031 --> 00:33:30.864
Article 48 doesn't address-
816
00:33:30.864 --> 00:33:34.440
So, what is the basis of this argument, entirely?
817
00:33:34.440 --> 00:33:39.440
We have a petition that wants to be on the ballot in 2024.
818
00:33:41.130 --> 00:33:45.540
We have the AG saying no dice,
819
00:33:45.540 --> 00:33:48.180
we have engagement of two
820
00:33:48.180 --> 00:33:51.210
opposing views in actual controversy,
821
00:33:51.210 --> 00:33:53.790
and nothing in the language of Article 48
822
00:33:53.790 --> 00:33:57.000
that says ye must get an injunction,
823
00:33:57.000 --> 00:33:58.980
in order to get the signatures.
824
00:33:58.980 --> 00:34:01.350
In fact, the whole purpose of the injunction,
825
00:34:01.350 --> 00:34:04.020
is to get around the Article 48.
826
00:34:04.020 --> 00:34:07.060
So, they've actually brought this timely.
827
00:34:07.060 --> 00:34:10.680
I don't understand why this is not,
828
00:34:10.680 --> 00:34:14.040
I get we don't decide constitutional issues unnecessarily,
829
00:34:14.040 --> 00:34:16.380
but isn't this a situation where we have
830
00:34:16.380 --> 00:34:19.710
a ripe constitutional issue that's not moot?
831
00:34:19.710 --> 00:34:21.060
I don't think it is, Your Honor,
832
00:34:21.060 --> 00:34:21.930
because we don't know
833
00:34:21.930 --> 00:34:23.880
whether this petition and these petitioners
834
00:34:23.880 --> 00:34:25.770
will meet any of the other requirements
835
00:34:25.770 --> 00:34:26.610
that they have to meet,
836
00:34:26.610 --> 00:34:28.650
in order for this to be on the ballot,
837
00:34:28.650 --> 00:34:29.520
and appear before the voters.
838
00:34:29.520 --> 00:34:33.832
But isn't the order of Article 48 anticipate
839
00:34:33.832 --> 00:34:36.390
that they get certification,
840
00:34:36.390 --> 00:34:39.150
and the point is you haven't certified it,
841
00:34:39.150 --> 00:34:42.150
and so they have an actual controversy,
842
00:34:42.150 --> 00:34:43.740
in terms of that certification,
843
00:34:43.740 --> 00:34:46.420
because you have now deemed this to be
844
00:34:48.510 --> 00:34:51.483
reasonably, clearly unconstitutional?
845
00:34:52.410 --> 00:34:53.243
I guess, Your Honor,
846
00:34:53.243 --> 00:34:55.350
this is where we lead into some of the practical concerns.
847
00:34:55.350 --> 00:34:56.606
So, these petitions-
848
00:34:56.606 --> 00:34:57.960
I don't know if you even have to lead into practical.
849
00:34:57.960 --> 00:35:00.360
Legally, the court often,
850
00:35:00.360 --> 00:35:04.110
initiative petitions are decided in all different stages.
851
00:35:04.110 --> 00:35:07.560
Some courts wait until they actually pass the public,
852
00:35:07.560 --> 00:35:09.990
before they will even review them.
853
00:35:09.990 --> 00:35:13.380
This court has been very generous
854
00:35:13.380 --> 00:35:16.380
in getting involved very early, but we don't have to, right?
855
00:35:16.380 --> 00:35:18.960
There's no legal requirement in the constitution
856
00:35:18.960 --> 00:35:21.240
that the SJC has to weigh in
857
00:35:21.240 --> 00:35:23.673
at any particular time in this process.
858
00:35:23.673 --> 00:35:24.810
As a practical matter,
859
00:35:24.810 --> 00:35:29.810
we've been weighing in when the votes make it a live issue.
860
00:35:31.950 --> 00:35:33.450
But we don't have to,
861
00:35:33.450 --> 00:35:35.100
we could actually wait until after
862
00:35:35.100 --> 00:35:37.680
the public decides this issue.
863
00:35:37.680 --> 00:35:41.397
A lot of courts do that around the country, right?
864
00:35:41.397 --> 00:35:44.010
We're unusually proactive.
865
00:35:44.010 --> 00:35:45.150
You absolutely could, Your Honor.
866
00:35:45.150 --> 00:35:47.880
And we're about to be, under their view,
867
00:35:47.880 --> 00:35:51.870
we would be the most proactive by far,
868
00:35:51.870 --> 00:35:54.450
because we would be jumping into things
869
00:35:54.450 --> 00:35:56.430
a year ahead of time,
870
00:35:56.430 --> 00:35:58.890
when we have no idea whether anyone but 10 people
871
00:35:58.890 --> 00:36:00.720
are interested in this, right?
872
00:36:00.720 --> 00:36:02.070
Right, and we have no idea,
873
00:36:02.070 --> 00:36:04.710
although these petitioners are telling us
874
00:36:04.710 --> 00:36:08.010
that they intend to gather signatures next fall,
875
00:36:08.010 --> 00:36:10.680
the next group of petitioners may not,
876
00:36:10.680 --> 00:36:12.090
or they may tell us that they intend
877
00:36:12.090 --> 00:36:13.680
to gather signatures, and then choose not to,
878
00:36:13.680 --> 00:36:16.590
and then, we've got this advisory opinion from the SJC,
879
00:36:16.590 --> 00:36:18.780
on the constitutionality of their proposed measure
880
00:36:18.780 --> 00:36:20.910
with petitioners that don't even intend
881
00:36:20.910 --> 00:36:22.320
to proceed with the process.
882
00:36:22.320 --> 00:36:26.910
I think the practical challenge we're all struggling with,
883
00:36:26.910 --> 00:36:29.550
is that Article 48, you're right,
884
00:36:29.550 --> 00:36:32.280
on its face, does not have a provision,
885
00:36:32.280 --> 00:36:34.710
with respect to when and how this court
886
00:36:34.710 --> 00:36:36.600
should review the certification decisions
887
00:36:36.600 --> 00:36:37.860
of the attorney general.
888
00:36:37.860 --> 00:36:40.770
Now we acknowledge that it is within this court's power
889
00:36:40.770 --> 00:36:42.210
to review those decisions,
890
00:36:42.210 --> 00:36:44.370
and so, then the question becomes,
891
00:36:44.370 --> 00:36:47.430
when in the process does it make sense to do so?
892
00:36:47.430 --> 00:36:50.310
We have competing concerns, we have competing concerns-
893
00:36:50.310 --> 00:36:53.640
Does it matter whether, how good the argument is?
894
00:36:53.640 --> 00:36:56.100
'Cause again, any 10 people can propose
895
00:36:56.100 --> 00:37:00.750
an initiative petition whenever they want, right?
896
00:37:00.750 --> 00:37:02.940
So, do we have to look to the merits,
897
00:37:02.940 --> 00:37:05.610
how close a call this is, decide?
898
00:37:05.610 --> 00:37:10.610
Is that a standard, or is it anything goes?
899
00:37:13.020 --> 00:37:15.840
I mean, looking to the merits and how close a call
900
00:37:15.840 --> 00:37:17.910
would be an awfully difficult standard,
901
00:37:17.910 --> 00:37:19.920
I would think, to implement.
902
00:37:19.920 --> 00:37:22.680
I think if you, as a practical matter,
903
00:37:22.680 --> 00:37:25.440
look at what would happen to the Article 48 process,
904
00:37:25.440 --> 00:37:29.370
if the petitioner's suggestion were adopted.
905
00:37:29.370 --> 00:37:32.220
Right now, as the court well knows,
906
00:37:32.220 --> 00:37:33.810
the vast majority of petitioners
907
00:37:33.810 --> 00:37:37.020
choose to file in August of an odd-numbered year.
908
00:37:37.020 --> 00:37:38.550
They proceed with signatures,
909
00:37:38.550 --> 00:37:40.206
either by form of an injunction.
910
00:37:40.206 --> 00:37:42.450
Well, they do create a crisis every year,
911
00:37:42.450 --> 00:37:44.700
and to their credit,
912
00:37:44.700 --> 00:37:48.570
they're avoiding a crisis,
(Justice chuckles)
913
00:37:48.570 --> 00:37:50.610
and your workload also,
914
00:37:50.610 --> 00:37:54.480
will not be crazed as every June for the last,
915
00:37:54.480 --> 00:37:57.210
you know, 20 years it's been, right.
916
00:37:57.210 --> 00:38:00.180
So, there's some value in teeing this up early,
917
00:38:00.180 --> 00:38:01.958
if it makes some sense.
918
00:38:01.958 --> 00:38:04.890
I think the challenge, Your Honor,
919
00:38:04.890 --> 00:38:07.950
is that while it might create less of a fire drill
920
00:38:07.950 --> 00:38:10.710
in spring of the even-numbered years,
921
00:38:10.710 --> 00:38:13.380
it would result in an incentive system
922
00:38:13.380 --> 00:38:15.900
that would result in us having more cases
923
00:38:15.900 --> 00:38:18.774
brought in the odd-numbered years, like this-
924
00:38:18.774 --> 00:38:19.607
But would that be a bad thing?
925
00:38:19.607 --> 00:38:20.940
Because wouldn't that just mean
926
00:38:20.940 --> 00:38:22.830
that the citizens of the Commonwealth
927
00:38:22.830 --> 00:38:25.440
are participating more in democracy?
928
00:38:25.440 --> 00:38:26.910
I think it would be a bad thing
929
00:38:26.910 --> 00:38:28.590
if it were being used as a means
930
00:38:28.590 --> 00:38:31.230
to obtain otherwise improper and improvident
931
00:38:31.230 --> 00:38:33.270
advisory opinions from this court-
932
00:38:33.270 --> 00:38:35.510
But why do you call it an advisory opinion?
933
00:38:35.510 --> 00:38:37.800
Is it because we don't know in the future,
934
00:38:37.800 --> 00:38:40.650
whether they will actually go through and get signatures?
935
00:38:40.650 --> 00:38:41.483
That's right,
936
00:38:41.483 --> 00:38:42.412
whether this will actually be-
937
00:38:42.412 --> 00:38:43.245
So, what bucket do we put that in?
938
00:38:43.245 --> 00:38:44.970
It's not mootness, it's not ripeness.
939
00:38:44.970 --> 00:38:48.600
What is it, just practically, we don't wanna do this.
940
00:38:48.600 --> 00:38:53.600
I think it is the court's long-held jurisprudence,
941
00:38:53.790 --> 00:38:56.310
cautioning against issuing opinions
942
00:38:56.310 --> 00:38:58.950
where there isn't an act of controversy.
943
00:38:58.950 --> 00:39:00.453
A number of these cases,
944
00:39:01.847 --> 00:39:04.170
as single justice, I've issued the injunctions,
945
00:39:04.170 --> 00:39:08.250
a number of these cases die on the vine, correct?
946
00:39:08.250 --> 00:39:09.270
That's right.
947
00:39:09.270 --> 00:39:10.793
More do than don't.
948
00:39:12.060 --> 00:39:14.730
In terms of petitions that are not certified,
949
00:39:14.730 --> 00:39:17.730
for which petitioners then try to get signatures,
950
00:39:17.730 --> 00:39:20.820
most of them don't succeed in then reaching the-
951
00:39:20.820 --> 00:39:21.653
But isn't the whole,
952
00:39:21.653 --> 00:39:23.400
isn't the whole constitutional provision
953
00:39:23.400 --> 00:39:27.030
based on the fact that we're making,
954
00:39:27.030 --> 00:39:29.370
the initiative process is an exception
955
00:39:29.370 --> 00:39:31.140
to the democratic process,
956
00:39:31.140 --> 00:39:35.220
and you need to get a lot of citizen support
957
00:39:35.220 --> 00:39:38.280
at multiple stages of the process,
958
00:39:38.280 --> 00:39:41.850
for us to devote a lot of energy to it, right?
959
00:39:41.850 --> 00:39:43.620
So, I think that's your best argument,
960
00:39:43.620 --> 00:39:48.030
that there is textual support for holding off here,
961
00:39:48.030 --> 00:39:53.010
because the provision doesn't, it makes it so difficult to,
962
00:39:53.010 --> 00:39:54.270
how many signatures do you have to get?
963
00:39:54.270 --> 00:39:56.313
It's a certain percentage of the-
964
00:39:56.313 --> 00:39:58.860
Half of 1% of what the governor got.
965
00:39:58.860 --> 00:40:00.780
So, for the first round of signatures,
966
00:40:00.780 --> 00:40:02.970
the one that occurs between September and December,
967
00:40:02.970 --> 00:40:05.881
it's 3% of the vote cast in the-
968
00:40:05.881 --> 00:40:07.846
What was, the number for that year would be what?
969
00:40:07.846 --> 00:40:09.720
So, I don't know what it will be,
970
00:40:09.720 --> 00:40:10.835
based on the most recent-
971
00:40:10.835 --> 00:40:11.668
Last year.
Gubernatorial election,
972
00:40:11.668 --> 00:40:14.670
but the last time, I believe it was 80,289.
973
00:40:14.670 --> 00:40:15.510
A lot different to have
974
00:40:15.510 --> 00:40:19.233
80,209 people interested in something, than 10.
975
00:40:20.670 --> 00:40:22.558
I agree with you.
(Justice chuckles)
976
00:40:22.558 --> 00:40:25.081
[Justice Wendlandt] One might be able to do the math.
977
00:40:25.081 --> 00:40:25.914
Can you talk
978
00:40:25.914 --> 00:40:27.495
a little bit about the,
(Justices laugh)
979
00:40:27.495 --> 00:40:32.495
since you did brief it, the decision not to certify.
980
00:40:33.570 --> 00:40:36.090
About the merits of the decision not to certify that?
981
00:40:36.090 --> 00:40:37.830
So, Your Honor, I think for better or worse,
982
00:40:37.830 --> 00:40:39.810
the attorney general's role here,
983
00:40:39.810 --> 00:40:42.000
is that of a gate-keeping role.
984
00:40:42.000 --> 00:40:44.580
She must assess the law as it exists,
985
00:40:44.580 --> 00:40:46.590
and the facts that she can reasonably notice them,
986
00:40:46.590 --> 00:40:48.210
at the time at which the proposed law
987
00:40:48.210 --> 00:40:50.130
is submitted to her for review.
988
00:40:50.130 --> 00:40:53.310
And, as the plaintiffs here acknowledge,
989
00:40:53.310 --> 00:40:55.650
we've got the Citizens United decision,
990
00:40:55.650 --> 00:40:58.500
and we have a chorus of federal appellate courts,
991
00:40:58.500 --> 00:41:00.270
who have uniformly held that
992
00:41:00.270 --> 00:41:03.060
an inexorable conclusion from Citizens United,
993
00:41:03.060 --> 00:41:06.090
is that the contribution limits proposed by this law
994
00:41:06.090 --> 00:41:07.890
violate the constitution.
995
00:41:07.890 --> 00:41:10.560
Now they may disagree with the reasoning of those cases,
996
00:41:10.560 --> 00:41:12.720
they may predict that the current Supreme Court
997
00:41:12.720 --> 00:41:15.450
would determine differently if presented with the issue,
998
00:41:15.450 --> 00:41:17.165
but the attorney general's role
999
00:41:17.165 --> 00:41:21.210
in this procedure is not to predict,
1000
00:41:21.210 --> 00:41:25.230
is not to make certification decisions based on the law,
1001
00:41:25.230 --> 00:41:28.950
as she wishes it would be, or on her policy preferences,
1002
00:41:28.950 --> 00:41:30.150
but to call the balls and strikes,
1003
00:41:30.150 --> 00:41:31.530
based on the law as it is.
1004
00:41:31.530 --> 00:41:34.410
And it can hardly be said to not be reasonably clear
1005
00:41:34.410 --> 00:41:36.780
that this infringes upon an excluded matter,
1006
00:41:36.780 --> 00:41:38.580
where the courts who have addressed this matter
1007
00:41:38.580 --> 00:41:40.740
have spoken so unanimously.
1008
00:41:40.740 --> 00:41:43.350
Well, but your opposing counsel articulates
1009
00:41:43.350 --> 00:41:46.050
some reasons that's not quite accurate,
1010
00:41:46.050 --> 00:41:48.540
or in his arguments, that's not quite accurate,
1011
00:41:48.540 --> 00:41:49.770
that in fact,
1012
00:41:49.770 --> 00:41:52.770
there are differences between
1013
00:41:52.770 --> 00:41:55.080
what he's asking in this petition,
1014
00:41:55.080 --> 00:41:57.120
and what those cases have held.
1015
00:41:57.120 --> 00:41:59.790
How do you address his argument there?
1016
00:41:59.790 --> 00:42:02.340
I think, to the extent there are any differences,
1017
00:42:03.240 --> 00:42:05.040
he has not explained, I don't think,
1018
00:42:05.040 --> 00:42:08.520
why the reasoning that those cases employed
1019
00:42:08.520 --> 00:42:10.320
would not be equally applicable
1020
00:42:10.320 --> 00:42:12.600
to the law that's proposed here.
1021
00:42:12.600 --> 00:42:14.790
Nor can he point us to a court case
1022
00:42:14.790 --> 00:42:17.310
that indicates that the proposed law,
1023
00:42:17.310 --> 00:42:19.830
as formulated by these plaintiffs,
1024
00:42:19.830 --> 00:42:23.761
would not fall within the reasoning of all those cases.
1025
00:42:23.761 --> 00:42:24.870
Do you need a court case for us
1026
00:42:24.870 --> 00:42:27.360
to determine whether something's unreasonably,
1027
00:42:27.360 --> 00:42:30.030
likely to, I forget the languages, but.
1028
00:42:30.030 --> 00:42:32.790
I don't think the attorney general needs a court case
1029
00:42:32.790 --> 00:42:35.520
precisely, on all fours with the petition.
1030
00:42:35.520 --> 00:42:38.610
She is charged with exercising her discretion
1031
00:42:38.610 --> 00:42:40.950
to determine whether or not the proposed law
1032
00:42:40.950 --> 00:42:43.110
infringes upon an excluded matter.
1033
00:42:43.110 --> 00:42:45.780
It is true that this court has not addressed
1034
00:42:45.780 --> 00:42:49.770
the precise legal issue that the plaintiffs are raising.
1035
00:42:49.770 --> 00:42:53.700
It is true that there is an argument that perhaps,
1036
00:42:53.700 --> 00:42:56.070
Citizens United might come out differently,
1037
00:42:56.070 --> 00:42:58.140
if framed in this particular lens,
1038
00:42:58.140 --> 00:43:00.750
and put before this particular Supreme Court,
1039
00:43:00.750 --> 00:43:02.340
but I think asking the attorney general
1040
00:43:02.340 --> 00:43:04.800
to base her certification decisions on that,
1041
00:43:04.800 --> 00:43:07.260
would be going far beyond what Article 48
1042
00:43:07.260 --> 00:43:09.840
contemplates the attorney general's role to be,
1043
00:43:09.840 --> 00:43:12.180
which is to look at the law as it exists,
1044
00:43:12.180 --> 00:43:14.400
to look at the facts that she can reasonably notice
1045
00:43:14.400 --> 00:43:18.420
in the limited time and context provided by Article 48,
1046
00:43:18.420 --> 00:43:20.580
and to assert, in her discretion,
1047
00:43:20.580 --> 00:43:23.160
whether or not the matter infringes upon an excluded matter,
1048
00:43:23.160 --> 00:43:25.770
and I think the attorney general reasonably did so here.
1049
00:43:25.770 --> 00:43:28.000
Are you able to address that
1050
00:43:28.920 --> 00:43:31.593
Republican Party of Louisiana case, at all?
1051
00:43:33.270 --> 00:43:34.103
In what-
1052
00:43:34.103 --> 00:43:35.730
[Justice Wendlandt] Council soft money case.
1053
00:43:35.730 --> 00:43:37.290
Yeah, the soft money case.
1054
00:43:37.290 --> 00:43:38.250
I'm not, Your Honor.
1055
00:43:38.250 --> 00:43:39.303
Okay, thank you.
1056
00:43:40.528 --> 00:43:42.780
I don't think that
1057
00:43:42.780 --> 00:43:44.400
that case-
1058
00:43:44.400 --> 00:43:46.320
changes the conclusion in light of
1059
00:43:46.320 --> 00:43:48.270
the chorus of other cases speaking.
1060
00:43:48.270 --> 00:43:50.610
In one of our cases, and I can't remember,
1061
00:43:50.610 --> 00:43:52.290
I think by the late Chief Justice,
1062
00:43:52.290 --> 00:43:57.290
he put time deadlines until when things should happen,
1063
00:43:57.660 --> 00:44:01.410
which of course, have been ignored since we did that.
1064
00:44:01.410 --> 00:44:04.620
If we don't adopt your view,
1065
00:44:04.620 --> 00:44:07.890
should we be imposing such time things,
1066
00:44:07.890 --> 00:44:10.170
saying you should wait until the next year?
1067
00:44:10.170 --> 00:44:13.050
Is that your sense of what we should be doing,
1068
00:44:13.050 --> 00:44:15.870
similar to what Chief Justice Gance did, in that opinion?
1069
00:44:15.870 --> 00:44:18.630
I think, Your Honor may be referring to the Dunn case.
1070
00:44:18.630 --> 00:44:19.463
Yes.
1071
00:44:19.463 --> 00:44:21.030
And I think the challenge here is,
1072
00:44:21.030 --> 00:44:23.820
where Article 48 prescribes such tight timelines,
1073
00:44:23.820 --> 00:44:26.520
and doesn't actually address the issue of judicial review,
1074
00:44:26.520 --> 00:44:28.080
the challenge is figuring out where
1075
00:44:28.080 --> 00:44:30.150
to plug that into the process,
1076
00:44:30.150 --> 00:44:32.370
when we are sufficiently certain
1077
00:44:32.370 --> 00:44:34.200
that a matter may reach the ballot,
1078
00:44:34.200 --> 00:44:36.540
without having to wait until the voters' vote,
1079
00:44:36.540 --> 00:44:38.430
because I think we all acknowledge that
1080
00:44:38.430 --> 00:44:39.600
that's suboptimal, as well,
1081
00:44:39.600 --> 00:44:41.550
to ask the voters to vote on something.
1082
00:44:42.510 --> 00:44:45.505
You know, I don't know that prescribing
1083
00:44:45.505 --> 00:44:48.270
a strict schedule necessarily makes sense,
1084
00:44:48.270 --> 00:44:50.820
but I think that the reasoning makes sense,
1085
00:44:50.820 --> 00:44:53.250
which is that we need to be balancing
1086
00:44:53.250 --> 00:44:56.070
when the matter is appropriately ripe,
1087
00:44:56.070 --> 00:44:58.860
versus waiting until the voters have been prejudiced,
1088
00:44:58.860 --> 00:45:00.330
by being asked to vote on a measure,
1089
00:45:00.330 --> 00:45:02.793
that the court will ultimately then throw out.
1090
00:45:05.280 --> 00:45:06.420
If there are no further questions,
1091
00:45:06.420 --> 00:45:08.250
I'd urge this court to uphold
1092
00:45:08.250 --> 00:45:10.350
the attorney general's certification,
1093
00:45:10.350 --> 00:45:11.670
in the event that you do not find
1094
00:45:11.670 --> 00:45:14.020
that the question presented is moot. Thank you.