Happy birthday, Massachusetts Constitution

June 16, 2016:-  It was on June 16, 1780 (236 years ago today) that the Constitution of the Commonwealth of Massachusetts was deemed and declared ratified. Its principal author, John Adams, produced an operating manual for a self-governing commonwealth of free people that combines practicality with elegance. If you have a minute or two to mark the occasion of our Constitution’s anniversary, you may wish to read the Preamble:

The end of the institution, maintenance, and administration of government, is to secure the existence of the body politic, to protect it, and to furnish the individuals who compose it with the power of enjoying in safety and tranquility their natural rights, and the blessings of life: and whenever these great objects are not obtained, the people have a right to alter the government, and to take measures necessary for their safety, prosperity and happiness.

The body politic is formed by a voluntary association of individuals: it is a social compact, by which the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for the common good. It is the duty of the people, therefore, in framing a constitution of government, to provide for an equitable mode of making laws, as well as for an impartial interpretation, and a faithful execution of them; that every man may, at all times, find his security in them.

We, therefore, the people of Massachusetts, acknowledging, with grateful hearts, the goodness of the great Legislator of the universe, in affording us, in the course of His providence, an opportunity, deliberately and peaceably, without fraud, violence or surprise, of entering into an original, explicit, and solemn compact with each other; and of forming a new constitution of civil government, for ourselves and posterity; and devoutly imploring His direction in so interesting a design, do agree upon, ordain and establish the following Declaration of Rights, and Frame of Government, as the Constitution of the Commonwealth of Massachusetts.

Another campaign finance rule. KA CHING!

As if they needed it this presidential-campaign season, here’s some good news for political consultants. The Massachusetts Office of Campaign and Political Finance (OCPF) is generating more business for them.

The latest state regulation aimed at controlling the funding of political speech  means that candidate committees and independent expenditure political action committees (IE PACs) will face penalties if they share consultants. How will they likely avoid that? By employing separate consultants, of course.

Massachusetts law prohibits IE PACS from coordinating with candidate committees. But proving coordination can be difficult, so the regulations create presumptions that put the onus on the PACs and candidate committees to prove they did not coordinate. Readers with backgrounds in criminal law, constitutional law, high-school civics, or cop shows may be familiar with the presumption of innocence: These presumptions are not like that presumption.

Under the new state regulation, there will be a presumption that the IE PAC and the candidate committee are coordinating expenditures if they use the same “political, media, or legal consultant, or polling firm.” They can rebut the presumption, i.e. prove their innocence, by demonstrating that they adhered to a written firewall policy, the sort of document lawyers and political consultants are good at drafting. Those who would prefer to avoid any entanglements in the first place should bear in mind the words of Han Solo on the subject: “That’s the real trick, isn’t it. And it’s gonna cost you something extra.” An extra consultant, that is.

Another provision states that there will be a presumption of coordination if an IE PAC republishes in whole or in part “a communication relating to a candidate that is posted on the candidate’s Internet or social media site.” So no mere copying from now on. This rule should encourage even greater creativity (a billable quality) by requiring IE PAC consultants to make their clients’ communications look and sound distinct from those on the candidates’ site. Whoever said red tape stifles business?

Somewhere in the Caribbean, I suspect, there floats a yacht named OCPF.

Peter Vickery_2012_focus
Peter Vickery, Esq.

New Political Disclosure Law

A new report describes some of the changes that the Massachusetts Legislature made to our commonwealth’s campaign finance laws after the decisions in SpeechNow.org v. FEC and Citizens United v. FEC. Most of the changes will come into force next January, but some are already in effect.

The report highlights some of the “remedies,” as the Office of Campaign and Political Finance (OCPF) calls them,  including the new requirement that some people who help pay for certain political advertisements must reveal their names. By way of an Act Relative to Campaign Finance Disclosure and Transparency, the Legislature amended General Laws Chapter 55, Section 18G so that any entity that makes an independent expenditure* in a political campaign (including a ballot-question campaign) has to publicly list the people who contributed $5,000.00 or more. This is one of the changes that has immediate effect, so it applies to the current state election campaign.

Compulsory-disclosure advocates such as Common Cause say that the goal is to help voters make “informed decisions,” prevent wealthy individuals from “secretly influencing” elections, and “hold corporations accountable.” It is no secret that people like Tom Steyer, Michael Bloomberg, George Soros, and the Koch brothers, spend large amounts of money on political campaigns; nor is it a secret that these big-dollar interventions are themselves subject of political debate and non-profit advocacy.

Prior to the new law, Massachusetts voters could already learn which organizations were making independent expenditures. For example, OCPF’s winter 2013 newsletter (page 2) explained that in the 2012 state elections the biggest independent-spender was none of the afore-mentioned billionaires, but rather the Massachusetts Teachers Association, closely followed by another union, SEIU 1199. One result of revised compulsory-disclosure law is that Massachusetts voters will promptly know the identities of some of the individuals — the ones who spend ≥$5,000 — behind the independently-funded political ads that precede Election Day.

Voters may well find it helpful to know who is paying for a particular piece of political propaganda. After all, show me who a man’s friends are, and I will tell you who he is, as Ralph Waldo Emerson said (I think). But compulsory-disclosure laws have come in for criticism not only because they arguably favor incumbents but also because of the way some organizations use the information to target and intimidate individuals who disagree with them, individuals such as Scott Eckern and Marjorie Christoffersen. Indeed, as this article in The Nation makes clear, the very purpose of “outing” donors is to apply public pressure so as to “shame them and hurt business” until they “stay on the sidelines” at election time. Given this explicit objective of chilling speech, it seems likely that opponents will challenge the constitutionality of the latest version of the compulsory-disclosure law in court.

*An independent expenditure is where people promote or oppose a candidate or cause independently, i.e. not by making a campaign contribution to a candidate or ballot-question committee.

Justin Sargent 1
Peter Vickery, Esq.

Obama to Demstore: “No You Can’t.”

President Obama’s reelection campaign is suing to prevent Demstore.com, a purveyor of political paraphernalia, from selling merchandise with the Obama rising sun logo. A recent story in the Washington Post describes the issues and the stakes. As well as reminding us that there is no constitutional wall of separation between politics and commerce, the lawsuit reveals some noteworthy differences between the President and the Republican nominee, Mitt Romney.

Back in 2008, Obama For America (OFA), a nonprofit corporation, registered the sunrise logo as a trademark with the United States Patent & Trademark Office (USPTO).  Federal registration is evidence of the owner’s exclusive right to use the mark in commerce, and this is the basis for OFA’s action against Demstore.com.  On June 1 OFA filed suit in the federal district court for the District of Columbia and on July 9 the court granted OFA’s request for a preliminary injunction, enjoining Demstore.com from using the trademark on its merchandise.

What high-minded political principle is at issue here? Money. Tens of millions of dollars.

According to OFA’s complaint, the “sale of merchandise featuring the Rising Sun Trademark makes up a significant portion of OFA’s revenue [and]… each time a supporter makes a relatively small purchase on the website, OFA obtains that individual’s contact information, which OFA can then use to reach out to that individual repeatedly to seek further donations and further opportunities to promote the Campaign.” By selling rising sun products, Demstore.com is allegedly free-riding and eating into OFA’s market share.

The OFA trademark registration (number 3541038) covers several classes of goods and services, among them “baby clothing, namely onesies.” Mitt Romney’s trademark application (number 77231852) refers to onesies as “infant and toddler one piece clothing.” At most this distinction may reflect the differences in the respective campaigns’ communication styles. But the biggest difference between Obama’s approach to trademark rights and Romney’s is this: Obama saw his application through to the end; Romney abandoned his.

“[A]n eagle-like bird with a head and beak and body that resembles a billowing flag” is how Romney’s 2007 application described the candidate’s trademark. Romney’s application cast a wide net, attempting to register the mark for 14 separate classes of goods and services. However, it seems that in stating that it would use the mark on products as diverse as money clips, deck chairs, umbrellas, shot glasses, cocktail shakers, hair bows, golf tees, drinking water, and, of course, “infant and toddler one piece clothing,” the Romney campaign may have over-reached. First they failed to file an Allegation of Use in connection with all 14 classes (a requirement for intent-to-use applications), and then failed to respond to the USPTO’s letter on the subject. So in October 2008, the USPTO deemed Romney’s application abandoned.

One campaign rigorously upholds its trademark rights. The other makes sweeping claims that it cannot support. Intellectual property aside, does this tell us something else about the candidates?

Revisiting Citizens United?

Opponents of untrammeled corporate campaign spending may have cause for optimism if a conservative organization “dedicated to fighting environmental extremism” persuades the Supreme Court of the United States to hear its case.

American Tradition Partnership, Inc., (ATP) is challenging Montana’s campaign contributions law, the Corrupt Practices Act of 1912. Unlike the relevant Massachusetts statute (M.G.L. c. 55, Section 8) the Montana law does not ban corporate campaign contributions outright. In fact, corporations are free to make campaign contributions so long as they solicit them from employees and shareholders, then pass them on to candidates via separate, transparent accounts, and file two simple forms with the state.

When Montana’s state’s supreme court upheld the law, ATP asked the Supreme Court of the United States to stay the decision, effectively granting an injunction. Although the Supreme Court did, indeed, grant the stay the accompanying statement from Justices Ginsberg and Breyer suggests that the Court may be take advantage of the Montana case to revisit Citizens United.

The case is American Tradition Partnerships, Inc. v. Bullock, Attorney General of Montana and you can read about it here.