A special state provision that allows labor unions to fund political campaigns but bans businesses from doing so is being challenged before the U.S. Supreme Court.

The Goldwater Institute has asked the court to take up the case of 1A Auto and 126 Self Storage against Michael Sullivan of the Massachusetts Office of Campaign and Political Finance.

The institute explains the problem: “In Massachusetts, for-profit businesses cannot give money to political candidates, committees, and parties at all – not directly, and not indirectly through a political action committee. But unions – including unions from outside the state – can give up to $15,000 to a single candidate and can also create political action committees to give even more. That makes Massachusetts one of six states that ban businesses – but not unions – from giving to parties, committees, and candidates.”

Its petition notes the question is whether such state limits on speech violate the First Amendment and the Equal Protection Clause by allowing one class of participants in the political process to have a voice but not another.

The institute describes the situation as an “unfair double standard” and says it wants the playing field leveled.

The case began in 2015 when the Goldwater Institute teamed up with Massachusetts Fiscal Alliance founder Rick Green and board member Mike Kane to file a lawsuit challenging the scheme.

Just three months ago, the Massachusetts Supreme Judicial Court affirmed the law.

“We cannot stand for discrimination in our state’s campaign finance law. The Massachusetts Supreme Judicial Court had an opportunity to level the playing field and require the Commonwealth to treat all parties the same, but it failed to do so,” said Kane. “We’re appealing to the U.S. Supreme Court. We’re hoping they will be more amenable and make it clear that the country’s most lopsided state campaign finance law is unconstitutional once and for all. Massachusetts voters cannot endure another tainted election.”

Paul Diego Craney of the Massachusetts Fiscal Alliance continued: “This past September’s ruling was a missed opportunity for advocates of campaign finance reform. Employers and unions are two sides of the same coin, and they should be treated as such. It’s a fundamental issue of fairness, and the time to bring equity to the situation is now.”

The petition explains that while Massachusetts bans businesses from spending money or giving anything else of value, “for the purpose of aiding, promoting or preventing the nomination or election of any person to public office” it gives unions and labor groups a free hand.

“These entities are not subject to any disclosure requirements or contribution limits as long as their contributions and independent expenditures in a given year do not exceed $15,000 or 10 percent of their revenues.”

That disparity, the filing contends, “violates the First Amendment’s guarantees of freedom of speech and freedom of association, the Fourteenth Amendment’s guarantee of equal protection of law, and analogous provisions of the Massachusetts Constitution.”

The petition explains the Supreme Court has spoken clearly against restrictions of different kinds of speakers. But “lower courts nonetheless lack clarity on how they should analyze challenges to certain types of campaign-finance restrictions that the court’s recent decisions have not directly addressed.”

If a change is not made, the filing argues, the state “perpetuates discriminatory rules allowing some, but not others, to speak.”

The filing continued: “Although the First Amendment and the Equal Protection Clause both demand that the government treat political speakers equally, the lower court and several Circuit Courts of Appeals have given minimal scrutiny to campaign finance schemes that treat some classes of political donors more favorable than others.”

“For too long, Massachusetts and other states have used campaign-finance rules to tilt the political playing field to favor some groups and ideas over others. And, unfortunately, courts have mostly let them get away with it,” said Goldwater Institute Senior Attorney Jacob Huebert. “We’re asking the Supreme Court to take this case to end this unfairness and make sure states respect everyone’s equal right to participate in politics.”

It’s not the first time the Goldwater Institute has challenged an unfair campaign finance advantage in court. Until 2016, Kentucky had a similar ban on employer contributions, but a federal district court ruled it unconstitutional after the Goldwater Institute brought a lawsuit against it.

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