Justice: SJC 13361.
Robert Herman and others,
V, attorney general, and another.
Justice: Okay, Attorney Lessig.
-: Madam Chief Justice.
May it please this court,
my name is Lawrence Lessig, and with my co-counsel Ron Fein,
we represent two sets of plaintiffs,
challenging the attorney general's refusal
to certify petition 2201, and-
-: Seems that you're right about
the literal language of Article 48,
no later than the first Wednesday in August, 2022,
is before the 2024 legislative session.
Lawrence: That's right.
-: And then you go to September,
you can see that you gotta do the,
not the 15 signatures, 10 signatures,
but you've gotta be before
the Secretary of State in September, 2023.
Lawrence: That's right. -: And then December, 2022.
It's not a year and a half, or whatever.
Lawrence: That's exactly right.
-: So, my question is,
why do we decide this constitutional case?
Where's the actual controversy?
Whatever doctrine you want to apply, ripeness.
When we have this situation in the normal course,
you got an injunction, and if the signatures get gathered,
you get a hearing before the SJC.
Why are we pontificating on this,
without knowing whether it's ever going to be on the ballot?
-: Well, Your Honor, you should not pontificate, for sure.
Instead, you should recognize that in this case,
our ability to proceed has been blocked
by a ruling of the attorney general.
And the attorney general is asking you to adopt a rule
that would essentially ensure
that every time a petition is denied,
there's, in effect, a million-dollar filing fee,
in order to bring a challenge to her petition,
as petitioners alleged, and was not challenged,
the costs beyond the ordinary costs
of gathering signatures for a petition
would be a million dollars
just to have the ability to challenge her ruling.
Now, this idea is based on a fundamental mistake
in her argument.
She says the court is obligated
to impose an additional textual requirement,
because the contemplation of the text and context
was that the elections were annual,
and therefore, to enter a initiative.
-: I understand,
the Article 74 Amendment, it takes care of that argument.
That argument goes nowhere.
-: Great, so then, the question is, from-
-: Lockhart also counsels us
not to decide constitutional questions unnecessarily.
And if every 10-person petition you file,
every 10-person gets together,
they decide they wanna challenge
some very interesting constitutional issue, or a silly one,
'cause we get lots of silly ones, too.
Doesn't the AG do
the initial screening of that, by constitution,
and they've screened it out, and you know,
you're inviting this court into,
again, every time 10 people have a disagreement
about a constitutional issue, we may be brought into it.
I mean, we can just wait,
and see if you actually do have the votes,
if you do get the signatures, can't we?
-: Your Honor, the question is,
from where does the power to obligate petitioners,
to gather these signatures, derive from?
It doesn't derive from Article 48.
-: You have the right to gather the signatures,
and they're gonna give you an injunction to do so.
-: Right, Your Honor, they give us an injunction,
but to force us to gather the signatures
in the even-numbered year is, in effect,
to force us to adopt
a million-dollar filing fee in order to-
-: Why is that the case?
If you get to choose, Justice Lowy agrees with you,
that you can file it the year before,
and they're wrong on that.
You get to choose when you do it,
but we don't like
to decide constitutional questions prematurely.
So, we want you to get the signatures.
You can get 'em whenever you want.
And the AG does the initial screening, they found your,
it violates the constitution, and we can leave it there,
until you get enough signatures
to make this a real issue for us.
-: But your honor,
where does the power to say
we have to get the signatures come from,
when this court decided Horton versus Attorney General.
-: You have to get the signatures to change the law of that-
-: That's right, but we have to get the signatures,
in order to move the petition from
the attorney general's office to the general court.
There is nothing in Article 48
that says we have to get the signatures
to challenge the attorney general's determination,
and that's what's at issue here.
-: But it lines up, Article 48 gives you the line,
when you can file with the Secretary of State.
It's not any September, and any December.
It's no earlier than the first Wednesday of September,
before the assembling of the general court,
into which they are to be introduced,
into which they are to be introduced is 2024.
Lawrence: Yes.
So, it contemplates that
that's where the signature is going to be
in that period of time.
-: Absolutely, but the question is,
when are we allowed to challenge
the attorney general's erroneous-
-: When there's gonna be a real case
with the signatures that you're gonna get on the ballot,
either through an injunction, or because you got them.
-: But Your Honor, there is a real case,
when she denies our ability to gather signatures.
Article 48 forbids
the gathering of signatures without the showing,
as this court's decision in Lockhart demonstrates,
of irreparable harm from the failure to gather signatures.
Her position was that we had to gather signatures last fall,
and in gathering signatures last fall,
we would have to get an injunction
to evade the plain language of Article 48,
that says that you can't gather-
-: You don't have to get the signatures last fall.
I know they said that you can get the signatures
in September through December of '23, that's not right.
You don't have to get the
signatures last fall. -: Okay, great.
Then the question is,
do we have to gather signatures under
the cloud of this being a non-certified petition?
Because that was her judgment.
That is not consistent with the constitution,
and that's not hypothetical.
That judgment says that
the ability of us to gather volunteers,
or to gather people behind a movement
has been disrupted by an erroneous constitutional judgment.
-: Well, maybe, or it's a correct one,
but we don't, you're bringing us into this fight very early,
and requiring us to decide
constitutional questions prematurely.
Now we may have improvidently
agreed to hear this, at this time.
That may be an issue for us.
-: But your honor,
Horton versus Attorney General creates the obligation
that this court will review
the attorney general's determination.
Horton didn't say anything about waiting
until signatures were gathered,
didn't force on us an obligation
to bear the million-dollar filing fee,
in order to have you make that determination.
That determination is ripe when she makes
an erroneous constitutional judgment,
and the constitutional judgment
is the plain application of Article 48.
It's whether, under the standards of Associated Industries,
it is certain that this is violating of-
-: I see you have a very short period of time,
so you're splitting your time or, I can't remember,
but I just wanna make sure
we don't lose you on the constitutional issue.
Lawrence: Please.
-: Given, I assume you're the Lessig
who writes about all this stuff,
so I hesitate
to disagree with you, (Justice laughs)
but I find no support in,
it seems to me that AGs clearly right that, you know,
Citizens United created this sort of,
impenetrable First Amendment armor around expenditures.
Is there anything,
and it keeps making the point repeatedly,
I glanced at it again this morning,
that this is not a contribution.
So, where in Citizens United is support for this?
Can you point me,
'cause I, again, I hesitate to disagree with you,
but I can't find it anywhere in there.
-: Citizens United addresses limitations on expenditures,
and the whole case here-
-: But the whole thing is saying that
expenditures are different than contributions.
Lawrence: Yes.
-: And that we're not gonna find quid pro quo
in the expenditure world.
We're gonna limit it, that quid pro quo,
to the contribution world.
-: Right.
As I would outline the argument that we intend to make,
my colleague Ron Fein
will address the quid pro quo argument.
And what I will address,
is the argument that it's improper for the attorney general
to restrict our having a petition,
on the basis of a prediction about
what the Supreme Court, or this court-
-: That's not what they're doing.
That Speechnow.org,
or what we said in dicta in A1 Auto,
They're rolling up their sleeves, and doing their job,
and deciding whether what's been said out there
about independent expenditures is violative,
or not violative of free speech,
which is their obligation under Article 48.
-: And I would agree,
if they were speaking about expenditures,
but we are talking about contributions.
This provision would limit contributions
to independent expenditure PACs, and Citizen-
-: Did you look at what chapter 55, section one,
defined a contribution as, by any chance?
In case you didn't,
a contribution of money
or anything of value to an individual,
candidate, political committee, or person,
acting on behalf of said individual,
candidate, or political committee.
Putting aside that in A1 Auto, we said that,
we confirmed that making unlimited independent expenditures,
as well as unlimited contributions
to independent expenditure PACs,
constitutes significant form of political expression.
Putting that dicta aside,
that's how we defined contribution.
-: But your honor,
that dicta is at the center
of the attorney general's own letter.
When she denied certification, she wrote,
Massachusetts courts have not specifically
weighed in on the constitutionality of laws
limiting campaign contributions
to independent expenditure PACs.
She could have added,
neither has the United States Supreme Court,
and those two statements together
should have resolved this case.
-: But that's,
I mean, the Supreme Court decision is extremely,
I mean, they go on, and on about saying,
I mean every expenditure has
to have a contribution in it, right.
You don't have money to expend,
unless someone gave you money.
Lawrence: That's right.
-: So, you're essentially gonna gut
the whole meaning of the expenditure thing,
if you look at... (chuckles)
-: Look, Your Honor, if we were before you,
with a petition that said
we wanted to limit independent expenditures,
this would be an easy case.
But as this court recognized in one 1A Auto,
the court made a fundamental distinction,
between expenditures and contributions.
And the question that we are teeing up,
as has been teed up in other contexts,
is whether contributions shall follow
the same rule as the expenditure.
-: [Justice Wendlandt] It's more complicated, right.
It's contributions to the Super PAC.
Lawrence: That's right.
-: Right. -: It's contributions
to independent expenditure-
-: Every federal court that has looked at the issue
has said that's unconstitutional.
-: That's right. Wendlandt: Okay.
-: And Your Honor,
here's the one contribution I hope you'll allow me
to make in the argument today,
every single federal court to consider this matter
has concluded that, in fact,
this is restricted by Citizens United.
But in none of those lower federal court cases,
did the court apply a principle of originalism? Not one.
And the single most important fact
about the United States Supreme Court over the past decade,
is that over the past decade,
originalism has become the dominant mode
of interpreting the Constitution.
It has given us an individual right
to bear arms, reverse the rights in ROE.
And so, the Baxter plaintiffs ask
why that same principle doesn't apply
in the context of campaign finance rules.
Justice Lowy: They're not predicting,
like you're saying the AG engaged in?
-: Well, Your Honor,
we've said the AG has predicted
that when this question gets to the Supreme Court,
the Supreme Court will conclude the same
as it did in Citizens United.
That is a prediction.
We're giving you a reason to doubt that prediction.
And in particular,
this is the part I hope you'll allow me to contribute,
because it's clear originalism would allow,
would allow the regulation that this petition advances,
it would allow regulations for corruption,
beyond quid pro quo corruption.
It would allow the kind of regulation
that Chief Justice Budd was talking about
in her concurrence in one 1A Auto,
where she described the substitutes and agents principle.
It would allow it,
and we don't offer these arguments to say
that this court must follow originalism,
or even to predict that the Supreme Court
will follow originalism.
This is what we argue.
When it is true that principles articulated by Justices
on the United States Supreme Court,
if applied consistently, would not block a petition,
at the very least, that should constitute a genuine dispute,
requiring the attorney general
to allow the petition to go forward.
Put differently, she should not block a petition,
based on the prediction
that Justices on the United States Supreme Court
will not act in a principled way.
If these are their principles,
then in the language of Associated Industries,
"It is certainly conceivable," quote unquote,
"that they would follow their principles,
or to permit plaintiff's petition to stand."
Or to put it the other way,
it is not inconceivable, is it,
that justices on the Supreme Court
will apply their principles consistently,
and if they do,
then there would be no basis
for finding this unconstitutional,
and in the standard of Associated Industries,
which ask this court not to weigh
the First Amendment standards,
and to make an ultimate First Amendment judgment,
but instead, to ask whether it's conceivable
that this petition is constitutional,
so that the people have a right to vote on it.
There could be no doubt that under that standard,
this petition should be allowed to proceed.
-: I hope you are right that it's not
an unreasonable belief. (Justices and Lawrence laugh)
-: Your Honor, I have personal experience.
-: I know.
I know. -: Clerking for Justice Scalia,
I can tell you, they can behave consistently,
whether we perceive it or not. (Justice Cypher chuckles)
And if they did,
then the type of corruption that again,
Chief Justice Budd has described,
could begin to be within the scope of what legislatures,
or the people could regulate.
And that opportunity to at least,
give them the chance to say
whether they're gonna be principled, or not,
can only occur if courts like this court
begin to recognize the actual gaps
in the actual opinions.
Because the court has not,
the Supreme Court has not addressed
the question of limitations on contributions
to independent expenditure PACs,
even if it has addressed limitations on expenditures.
I'd like to allow my colleague to address now,
the question of quid pro quo court corruption.
-: [Chief Justice Budd] Thank you.
Okay, 25.
-: Thank you, Madam Chief Justice.
May it please the court,
Ronald Fein for the Herman Plaintiffs.
Because the Herman plaintiffs agree
with Professor Lessig, regarding mootness,
I'd like to focus my time on two issues,
the standard of review,
and the quid pro quo corruption interest
that this petition serves.
The standard of review in this case is obvious impropriety,
as stated in the Yankee Atomic Electric case,
Associated Industries rephrase that
as whether it is reasonably clear
that it violates the freedom of speech,
or in this case, any excluded matter,
unless it is reasonably clear, then neither the AG,
nor this court should prevent
the proposal from moving forward.
That's intended to be a threshold screening.
Here, the single justice acknowledged that
there were novel legal arguments presented on both sides.
This is not clear,
this is much more like in Associated Industries,
where the court said we regard ourselves as fortunate
that we need not attempt to resolve the uncertainty
of the constitutionality of the proposed law,
under the First Amendment.
Here, what we have is an issue
that has never been decided by any court
with jurisdiction over Massachusetts.
Not this court, not the US Supreme Court,
not a superior court in Massachusetts-
Justice: Did you know the- Justice: Go ahead.
-: You know the dicta in A1 Auto though, right?
Where we said that Citizens United permitted corporations
to engage in significant forms of political expression
that was not allowed in Beaumont,
when Beaumont was decided,
that is, to make unlimited independent expenditures,
as well as unlimited contributions
to independent expenditure PACs.
-: Your Honor, that dictum is in 1A Auto,
but it is, in fact, dictum,
because it was not the issue presented there,
and it is an issue presented here.
So, now that we've got it squarely on the table,
we can acknowledge that,
yes, there are lower federal court cases
in other parts of the country.
Seventh Circuit, Ninth Circuit, Second Circuit,
that have ruled that way-
-: It's not just the lower federal courts.
I mean, I've got Citizens United in front of me.
Tell me where, I'm just reading,
I can pick out 10 of these.
The absence of prearrangement and coordination
of an expenditure with the candidate, or his agent,
not only undermines the value
of the expenditure to the candidate,
but also alleviates the danger
that expenditures will be given as a quid pro quo.
There's tons of statements in Citizens United.
Whether you like Citizens United or not,
there are tons of statements
that say expenditures are not quid pro quo issues.
It may be silly reasoning, but it's the reasoning.
So, I don't understand how you're getting around it,
by saying the contribution to the PAC
isn't a different category,
'cause you can't have expenditures
without contributions to the,
they're not the same as contributions to the candidate.
They're different. They're, well go ahead.
Ronald: Thank you,
Your Honor. -: And also,
tell me in Citizens United what I can rely on,
because I've just got the text here.
-: Sure, I would say Citizens United and McCutcheon,
which came after it,
which explicitly upheld
the authority to regulate contributions
in the interest of preventing quid pro quo corruption-
-: Contributions to independent PACs, Super PACs?
-: Your Honor,
if I could walk you through a concrete example
of how this would actually play out.
Let's take as given,
that Citizens United has held
that independent expenditures themselves
cannot be part of a quid pro quo transaction.
So, here's the situation.
So, he is a donor,
he wants to make a big spend in favor of a candidate.
I'm sorry for doing this,
but you are now a politician,
and you are running for office, okay?
And I am the person who's running a Super PAC, okay?
Now I am an expert in scripting TV ads,
buying media time, bidding on radio slots,
Facebook search terms, okay?
I'm not gonna talk to the candidate.
I'm gonna spend a million dollars to support her.
I'm not gonna talk to her at all,
because that would be coordinating,
and then my expenditures would count
as coordinated expenditures, which are contributions.
So, there's no quid pro quo happening between me and her.
He is running a widget factory,
and he wants her to vote yes on the widgets bill.
So, he is gonna talk to her, without me even involved.
And he's gonna say,
I'm gonna make a million-dollar contribution
to the Super PAC that supports your reelection,
if you agree to vote yes on the widgets bill.
She can say yes to that, that's quid pro quo bribery.
The Super PAC is actually not even involved,
it doesn't need to be.
That actually happened
in an actual federal bribery case
that we cited in our briefs, the Menendez case,
where the briber bribed the politician allegedly,
without any involvement
by the independent expenditure PAC.
So, the independent expenditures are not corrupting,
but the conversation between the donor and the politician
can be part of quid pro quo corruption.
Now, under the Speechnow line of cases,
which all arose immediately after
Citizens United, 2010, '11, '12,
Super PACs didn't even exist at that time.
-: By the way, your petition isn't directed at that.
It's directed at just,
any expenditure over $5,000 from him to you, right?
Or is there this express bribery component to this?
Or is it- Ronald: Your Honor-
-: Is every, any $5,000,
anything over $5,000 is banned, right?
-: All contributions are prophylactic,
contribution limits are prophylactic,
and that's the basis on which
the Supreme Court has upheld them.
Just like you could make in theory,
you could write up-
So, isn't it clearly over-board?
I mean, you're worried about this one thing,
where they're secretly telling you,
I'm gonna give so-and-so to avoid this,
but that's not what your bill says.
Your bill is directed at
every contribution over $5,000, right?
-: Well, just like the contribution limits
to candidates are limited at $1,000.
No one is saying that all contributions
of 1,001 to a candidate would be bribes,
but the contribution limits are authorized at $1,000,
because they prevent quid pro quo corruption,
or just as importantly, its appearance.
And so, that's the basis for regulating
contribution limits under one 1A.
-: They say there was a carve-out
for just what you're talking about.
Wouldn't that make your whole petition
over-board and sweeping in all kinds of protected speech,
under Citizens United?
So, even if we did recognize your little hypothetical here,
which is of some concern,
you're preventing any kind of contribution to the PAC,
which seems to fall right
smack into what Citizens United doesn't like, right?
-: Your Honor, it's the exact same analogy
as contribution limits to candidates.
A $1,001 contribution to a candidate
in Massachusetts is illegal,
even though most of them wouldn't be bribes.
And that's because the contribution limit is defensible,
on the basis that it helps prevent quid pro quo corruption.
Now here we have a case where under current law,
you can make a $10 million contribution
to a Super PAC supporting a candidate.
And without this law,
the case law that the attorney general is relying on,
says that has no possible corrupting value,
and that doesn't withstand scrutiny.
It's not logical,
and it's contradicted by both the actual bribery cases
that we've cited in our brief,
and the appearance of quid pro quo corruption
that the public perceives documented in surveys-
-: And that's why Citizens United has been
condemned so intensely,
but it doesn't mean we get to revisit that.
-: Your Honor, this petition does not
contradict Citizens United as properly interpreted,
which says that the expenditures may not be corrupting,
but contributions can be,
because the contributor can talk to the politician,
even if the expender can't.
-: Any case law in the country, at all, that we can look at,
where a contribution to one of these PACs
is treated like a contribution
to a political candidate,
as opposed to being part of
the expenditure analysis, in any case,
I know there's 30 going the other way.
Just give us one case
that we can look at to helps support us.
-: Something very close to that, Your Honor,
which is in Republican National Committee versus Louisiana,
which is one of the cases cited in the briefs.
-: It's in the brief?
-: It's cited in our briefs.
It's a Republican Party of Louisiana versus FEC.
It's a DC Circuit, or three-judged court case,
that was summarily affirmed by the Supreme Court.
It's very close to your scenario.
It involves the soft money limits in federal law,
which say that in certain cases,
political parties can spend money independently,
without coordination, that is the question.
And the Chief Judge, Srinivasan of the DC circuit,
said that the inducement comes not from the spending,
which is independent,
this is a 2017 case, well after Citizens United,
but rather from the contribution being made,
in the first place.
Now, again, I don't think that we need
to have circuit cases in support of this.
Associated Industries didn't cite a single circuit case.
Neither did Yankee Atomic Electric,
'cause they just looked to Supreme Court case law,
and this court's own case law.
But to the extent that there is a circuit case,
that is the most helpful
that I could think of right now.
So, I see that my time is over,
but if I may have another minute or two,
I'd like to just wrap up,
which is that the existence of
the potential of quid pro quo corruption,
through Super PACs,
was theoretically comprehensible in 2010,
when Speechnow was decided.
But it may not have been as apparent,
because no one really understood how these would evolve.
Those laws challenged in the set of cases from 2010 to 2012,
they weren't deliberate,
they weren't specifically regulating contributions
to independent expenditure PACs.
They were pre-2010 laws,
that were challenged as applied
to independent expenditure committees.
Nobody had seen what had happened with these.
In fact, attorney general of the United States
declined to appeal Speechnow to the US Supreme Court,
because he said it would affect only
a small subset of contributions.
We've now seen to the contrary,
that contributions to independent expenditure PACs
dwarf direct candidate contributions, in many elections.
And, why not?
Because you can make a $10 million contribution,
instead of a $1,000 contribution.
The Boston mayoral election,
we saw $1 million contribution by a single individual,
when you could only contribute a thousand dollars
directly to a candidate.
We now have the experience of over a decade of Super PACs,
that unfortunately came after these decisions.
We've seen actual bribery cases
coming through donations to Super PACs.
We've seen public opinion surveys,
which contribute to the appearance of corruption.
And if this initiative is allowed to go to the ballot,
I predict we would see
an overwhelming public vote and support,
which would itself be evidentiary
of the appearance of quid pro quo corruption.
-: I just can't find this site you're talking about.
I'm looking at your brief.
Ronald: Can I (indistinct).
-: Which case is it?
-: Sure.
It's Republican Party of Louisiana versus FEC,
137 Supreme Court Reporter 2178.
We cited page 45 of our-
-: I thought you said it was a DC,
so it's a US Supreme Court case?
-: It was I believe a,
it's either a three-judged court,
or a DC circuit case that was summarily affirmed.
And following McConnell- -: Okay, so,
we can find the site from the Supreme Court case?
Okay, I gotcha. -: Yeah,
and it said that the inducement came from
the contribution to the soft,
and again, soft money,
much like independent expenditure PACs,
is not supposed to be coordinated with the candidates.
So, in conclusion,
this is anything but reasonably clear at this stage.
Now this court finding that it is not reasonably clear
that it violates Article 16,
would allow this court to preserve its options.
It would not foreclose this court,
if the initiative passes,
from revisiting that finding upon a full factual record.
And as this court said in Associated Industries,
this is only the first opportunity
for the constitutionality to be attacked.
In conclusion,
we ask that this court find that
it is not obviously improper,
that it is not reasonably clear
that this petition violates Article 16, and I thank you.
-: [Chief Justice Budd] Okay, thank you.
All right, Attorney Sterman.
-: Good morning, Your Honors, and may it please the court.
My name is Ann Sterman, assistant attorney general,
appearing today on behalf of
the attorney general and Secretary of Commonwealth,
and with me is Assistant Attorney General Adam Hornstein.
Your Honor, this court should
decline the petitioner's request
for what is, essentially, an advisory opinion,
as to whether or not their proposed law
addresses a matter excluded from
the initiative by Article 48.
Their ahistorical justification for their request
runs headlong into a number of practical reasons
and sound prudential reasons
why this court should adhere
to its practice of declining
to wade into moot constitutional questions.
-: Yeah, the problem is, it's not really moot.
I get we shouldn't be messing around with
theoretical constitutional issues,
and that may be a reason why we shouldn't decide this case,
but it meets the language of the constitutional provision.
It's done whatever it is, no earlier,
I can't remember the no later,
it meets the requirements, and it's a live issue,
if they actually can get the signatures for it,
and we don't usually sort of, sit around with,
I mean, I understand their point.
It's gonna be harder to collect the signatures,
I'm not sure I feel that should compel us
into deciding an incredibly novel,
difficult constitutional issue,
that probably will get us
smacked down by the US Supreme Court.
But can we really do that? (Justice Lowy chuckles)
If this is before us, and we don't agree with you,
that it has to be filed the year later,
do we have to decide the case,
or, I mean, we don't have to do anything, I guess,
but what do we do with a case that isn't moot?
'Cause I don't find it moot.
-: And Lockhart is an odd-year case, so that doesn't help.
-: Lockhart is an odd-year case,
but it did address also,
some of the same or similar arguments
to what the petitioners here raised.
In Lockhart, as in some of the cases
in which the single justice
has entered the injunction to allow petitioners
of a declined petition to gather signatures,
an argument was advanced as to the difficulty
of gathering signatures on a petition,
for which the AG has not granted certification.
In Lockhart, although it was an odd year,
petitioners made the point that they could
resubmit the petition again, the following year,
and none of those reasons
did this court find compelling enough
to determine that the question was not moot, so-
-: But Lockhart, going to Justice Kafker's point,
I do not see how this is moot.
I don't see how Lockhart helps you un-mootness.
Here, there is a complete recognition on an odd-year case,
that they weren't going to make the December signatures
to the Secretary of State,
so the issue is not moot,
so going back to Justice Kafker's case,
maybe I shouldn't say pontificate,
but do we address this issue?
Is there an actual controversy to resolve?
There's a way to do this,
which is to get an injunction, and gather the signatures,
and if you make 'em, have it heard by the court.
-: I think that's right, Your Honor.
And the most important point here
is the point that this court should not
reach the constitutional question,
and the vacuum at which the petitioners
are asking this court to reach it.
So, in the alternative- -: Okay, so, but,
how do we, okay, I get that,
and we wanna avoid
deciding constitutional issues unnecessarily,
particularly difficult ones.
But the cases before us,
the issue was alive when we took it,
you know, if you're wrong on the first point,
the case is not moot, it's before us.
So, how does it read, and assume the following extra step.
We disagree with you,
that it couldn't be filed a year ahead of time,
but we do agree we shouldn't be
deciding cases unnecessarily,
and that, you know, get the signatures.
You want to change the law of the commonwealth?
You know, you gotta spend money to change it,
'cause you're not the elected officials of the commonwealth,
and we don't let 10 people
dictate whether anybody does this,
so how do we decide this case? (chuckles)
How does that write?
-: So, in that event,
I think, Your Honors would find the matter
is not ripe for adjudication for this court,
because the petitioners have not demonstrated
the requisite public support
in the form of the gathering of signatures
that is required by Article 48.
Justice: Where is that in Article 48?
-: That the petitioners must gather
their signatures in order to get review from this court?
-: Yes.
-: Candidly, Your Honor, it's not.
-: [Justice Wendlandt] Right.
Ann: Article 48 doesn't address-
-: So, what is the basis of this argument, entirely?
We have a petition that wants to be on the ballot in 2024.
We have the AG saying no dice,
we have engagement of two
opposing views in actual controversy,
and nothing in the language of Article 48
that says ye must get an injunction,
in order to get the signatures.
In fact, the whole purpose of the injunction,
is to get around the Article 48.
So, they've actually brought this timely.
I don't understand why this is not,
I get we don't decide constitutional issues unnecessarily,
but isn't this a situation where we have
a ripe constitutional issue that's not moot?
-: I don't think it is, Your Honor,
because we don't know
whether this petition and these petitioners
will meet any of the other requirements
that they have to meet,
in order for this to be on the ballot,
and appear before the voters.
-: But isn't the order of Article 48 anticipate
that they get certification,
and the point is you haven't certified it,
and so they have an actual controversy,
in terms of that certification,
because you have now deemed this to be
reasonably, clearly unconstitutional?
-: I guess, Your Honor,
this is where we lead into some of the practical concerns.
So, these petitions-
-: I don't know if you even have to lead into practical.
Legally, the court often,
initiative petitions are decided in all different stages.
Some courts wait until they actually pass the public,
before they will even review them.
This court has been very generous
in getting involved very early, but we don't have to, right?
There's no legal requirement in the constitution
that the SJC has to weigh in
at any particular time in this process.
As a practical matter,
we've been weighing in when the votes make it a live issue.
But we don't have to,
we could actually wait until after
the public decides this issue.
A lot of courts do that around the country, right?
We're unusually proactive.
-: You absolutely could, Your Honor.
-: And we're about to be, under their view,
we would be the most proactive by far,
because we would be jumping into things
a year ahead of time,
when we have no idea whether anyone but 10 people
are interested in this, right?
-: Right, and we have no idea,
although these petitioners are telling us
that they intend to gather signatures next fall,
the next group of petitioners may not,
or they may tell us that they intend
to gather signatures, and then choose not to,
and then, we've got this advisory opinion from the SJC,
on the constitutionality of their proposed measure
with petitioners that don't even intend
to proceed with the process.
I think the practical challenge we're all struggling with,
is that Article 48, you're right,
on its face, does not have a provision,
with respect to when and how this court
should review the certification decisions
of the attorney general.
Now we acknowledge that it is within this court's power
to review those decisions,
and so, then the question becomes,
when in the process does it make sense to do so?
We have competing concerns, we have competing concerns-
-: Does it matter whether, how good the argument is?
'Cause again, any 10 people can propose
an initiative petition whenever they want, right?
So, do we have to look to the merits,
how close a call this is, decide?
Is that a standard, or is it anything goes?
-: I mean, looking to the merits and how close a call
would be an awfully difficult standard,
I would think, to implement.
I think if you, as a practical matter,
look at what would happen to the Article 48 process,
if the petitioner's suggestion were adopted.
Right now, as the court well knows,
the vast majority of petitioners
choose to file in August of an odd-numbered year.
They proceed with signatures,
either by form of an injunction.
-: Well, they do create a crisis every year,
and to their credit,
they're avoiding a crisis, (Justice chuckles)
and your workload also,
will not be crazed as every June for the last,
you know, 20 years it's been, right.
So, there's some value in teeing this up early,
if it makes some sense.
-: I think the challenge, Your Honor,
is that while it might create less of a fire drill
in spring of the even-numbered years,
it would result in an incentive system
that would result in us having more cases
brought in the odd-numbered years, like this-
-: But would that be a bad thing?
Because wouldn't that just mean
that the citizens of the Commonwealth
are participating more in democracy?
-: I think it would be a bad thing
if it were being used as a means
to obtain otherwise improper and improvident
advisory opinions from this court-
-: But why do you call it an advisory opinion?
Is it because we don't know in the future,
whether they will actually go through and get signatures?
-: That's right,
whether this will actually be-
-: So, what bucket do we put that in?
It's not mootness, it's not ripeness.
What is it, just practically, we don't wanna do this.
-: I think it is the court's long-held jurisprudence,
cautioning against issuing opinions
where there isn't an act of controversy.
-: A number of these cases,
as single justice, I've issued the injunctions,
a number of these cases die on the vine, correct?
-: That's right.
Justice: More do than don't.
-: In terms of petitions that are not certified,
for which petitioners then try to get signatures,
most of them don't succeed in then reaching the-
-: But isn't the whole,
isn't the whole constitutional provision
based on the fact that we're making,
the initiative process is an exception
to the democratic process,
and you need to get a lot of citizen support
at multiple stages of the process,
for us to devote a lot of energy to it, right?
So, I think that's your best argument,
that there is textual support for holding off here,
because the provision doesn't, it makes it so difficult to,
how many signatures do you have to get?
It's a certain percentage of the-
-: Half of 1% of what the governor got.
-: So, for the first round of signatures,
the one that occurs between September and December,
it's 3% of the vote cast in the-
-: What was, the number for that year would be what?
-: So, I don't know what it will be,
based on the most recent-
Justice Kafker: Last year. -: Gubernatorial election,
but the last time, I believe it was 80,289.
-: A lot different to have
80,209 people interested in something, than 10.
Ann: I agree with you. (Justice chuckles)
-: [Justice Wendlandt] One might be able to do the math.
-: Can you talk
a little bit about the, (Justices laugh)
since you did brief it, the decision not to certify.
-: About the merits of the decision not to certify that?
So, Your Honor, I think for better or worse,
the attorney general's role here,
is that of a gate-keeping role.
She must assess the law as it exists,
and the facts that she can reasonably notice them,
at the time at which the proposed law
is submitted to her for review.
And, as the plaintiffs here acknowledge,
we've got the Citizens United decision,
and we have a chorus of federal appellate courts,
who have uniformly held that
an inexorable conclusion from Citizens United,
is that the contribution limits proposed by this law
violate the constitution.
Now they may disagree with the reasoning of those cases,
they may predict that the current Supreme Court
would determine differently if presented with the issue,
but the attorney general's role
in this procedure is not to predict,
is not to make certification decisions based on the law,
as she wishes it would be, or on her policy preferences,
but to call the balls and strikes,
based on the law as it is.
And it can hardly be said to not be reasonably clear
that this infringes upon an excluded matter,
where the courts who have addressed this matter
have spoken so unanimously.
-: Well, but your opposing counsel articulates
some reasons that's not quite accurate,
or in his arguments, that's not quite accurate,
that in fact,
there are differences between
what he's asking in this petition,
and what those cases have held.
How do you address his argument there?
-: I think, to the extent there are any differences,
he has not explained, I don't think,
why the reasoning that those cases employed
would not be equally applicable
to the law that's proposed here.
Nor can he point us to a court case
that indicates that the proposed law,
as formulated by these plaintiffs,
would not fall within the reasoning of all those cases.
-: Do you need a court case for us
to determine whether something's unreasonably,
likely to, I forget the languages, but.
-: I don't think the attorney general needs a court case
precisely, on all fours with the petition.
She is charged with exercising her discretion
to determine whether or not the proposed law
infringes upon an excluded matter.
It is true that this court has not addressed
the precise legal issue that the plaintiffs are raising.
It is true that there is an argument that perhaps,
Citizens United might come out differently,
if framed in this particular lens,
and put before this particular Supreme Court,
but I think asking the attorney general
to base her certification decisions on that,
would be going far beyond what Article 48
contemplates the attorney general's role to be,
which is to look at the law as it exists,
to look at the facts that she can reasonably notice
in the limited time and context provided by Article 48,
and to assert, in her discretion,
whether or not the matter infringes upon an excluded matter,
and I think the attorney general reasonably did so here.
-: Are you able to address that
Republican Party of Louisiana case, at all?
-: In what-
-: [Justice Wendlandt] Council soft money case.
Justice: Yeah, the soft money case.
-: I'm not, Your Honor.
-: Okay, thank you.
-: I don't think that
that case-
changes the conclusion in light of
the chorus of other cases speaking.
-: In one of our cases, and I can't remember,
I think by the late Chief Justice,
he put time deadlines until when things should happen,
which of course, have been ignored since we did that.
If we don't adopt your view,
should we be imposing such time things,
saying you should wait until the next year?
Is that your sense of what we should be doing,
similar to what Chief Justice Gance did, in that opinion?
-: I think, Your Honor may be referring to the Dunn case.
Justice Kafker: Yes.
-: And I think the challenge here is,
where Article 48 prescribes such tight timelines,
and doesn't actually address the issue of judicial review,
the challenge is figuring out where
to plug that into the process,
when we are sufficiently certain
that a matter may reach the ballot,
without having to wait until the voters' vote,
because I think we all acknowledge that
that's suboptimal, as well,
to ask the voters to vote on something.
You know, I don't know that prescribing
a strict schedule necessarily makes sense,
but I think that the reasoning makes sense,
which is that we need to be balancing
when the matter is appropriately ripe,
versus waiting until the voters have been prejudiced,
by being asked to vote on a measure,
that the court will ultimately then throw out.
If there are no further questions,
I'd urge this court to uphold
the attorney general's certification,
in the event that you do not find
that the question presented is moot. Thank you.