|June 18, 1991
Daniel Winslow, Esq.
Sherin and Lodgen
100 Summer Street
Boston, MA 02110
Re: Republican Redistricting Task Force
Dear Mr. Winslow:
This letter is in response to your April 25, 1991, letter requesting clarification of Advisory Opinion AO-89-27 or a further advisory opinion regarding the application of M.G.L. c.55, s.8 to the Republican Redistricting Task Force (hereinafter "Task Force")
Advisory Opinion AO-89-27 was issued on December 7, 1989, in response to your October 10, 1989, letter requesting this Office's opinion. At that time you had recently created an organization tentatively called the "Republican Redistricting Task Force." The description of your organization and its purposes were set forth in the Office's 1989 opinion which is attached hereto as Appendix A. In that opinion the Office concluded in Part 3 that M.G.L. c.55, s.8 prohibited contributions to the Task Force as contributions aiding or promoting or antagonizing the interests of a political party. Since AO-89-27 was issued, you have formed the Task Force. You are writing again because there are additional facts which have arisen which you believe may affect this Office's earlier opinion. Alternatively, you ask this Office to reconsider its opinion in light of concerns which are raised in your letter.
This Office gave a number of individuals an opportunity to comment on your request. Of the three political parties who were notified of the request on May 7, 1991, two of the three parties submitted comments either in writing or orally.
I. Additional Factual Circumstances
The additional factual circumstances brought to the Office's attention are set forth in full in Appendix B. These circumstances fall into three categories. First, you state that only 2 members of the 15-member Task Force represent the Republican Party in its official capacity. Next, you note that computer services and possibly other services will be made available to non-Republican groups representing the interests of various minority communities, to assist these groups in analyzing redistricting plans and preparing alternative plans for consideration by the Legislature or the Federal Courts. You also comment that the Task Force has publicly stated its intention to enforce compliance with the federal Voting Rights Act of 1965. Finally, you state that the Task Force's "express purpose" is to insure compliance with state and federal requirements in all state and federal redistricting plans and that such activities are in the public interest rather than for "any benefit to the Republican Party exclusively."
M.G.L. c.55, s.8 provides, in pertinent part:
No corporation carrying on [certain listed businesses] . . . , no business corporation incorporated under the laws of or doing business in the commonwealth and no officer or agent acting in behalf of any corporation mentioned in this section, shall directly or indirectly give, pay, expend or contribute, or promise to give, pay, expend or contribute, any money or other valuable thing for the purpose of aiding, promoting or preventing the nomination or election of any person to public office, or aiding or promoting or antagonizing the interest of any political party.
In A0-89-27, this Office concluded that corporate contributions to the Task Force would be prohibited by section 8 because of "the sponsorship of Republican legislators and leaders." While this Office appreciates the fact that the Task Force's goals and purposes may, in certain aspects and at certain times, coincide with the goals and purposes of other non-Republican groups or the general public interest, it is the opinion of this Office that the fundamental purpose of the Task Force is to aid and/or promote the interests of the Republican Party relative to Massachusetts' state and congressional redistricting.
The above conclusion is based upon a number of factors. First, although the Republican Party, in its official capacity, may only be represented by two members of the 15 member Task Force, all members of the Task Force are also members of the Republican Party. According to the membership list which you forwarded to me, the Task Force's members include, among others: Governor William F. Weld, Lieutenant Governor Paul Cellucci, Senate Republican Leader David H. Locke, House Republican Leader Peter Forman and Republican National Committeeman Ronald Kaufman. Even if these members do not "formally" represent the Massachusetts Republican State Committee and possess "diverse interests", it would be difficult to conclude that they do not have the interests of the Republican Party at heart.
Next, I note that the very name "Republican Redistricting Task Force" strongly suggests that the Task Force's interests and purpose must be consistent with those of the Republican Party. Indeed, M.G.L. c.56, s.40 prohibits any organization other than a duly elected political committee from using the name of a political party in its organization's name without the written consent of that political party's state committee, a consent which you have informed me the Task Force has received in compliance with section 40 and the Republican State Committee's by-laws. The very name of the Task Force is apt to attract certain persons and certain funds that would not be drawn to either a Democratic Redistricting Task Force or a Tri-partisan Redistricting Task Force. Political parties do not treat the use of their name lightly. In fact, this Office recently informed a non-elected multi-candidate committee that it would have to change its name as a result of the Secretary of State's recent certification of the Independent Voters Party.
It is conceivable, and you so state, that the Task Force plans to share information and services with non-Republican groups. The groups listed represent different minority interests and one group referenced is the Latino Democratic Committee of Massachusetts. The fact that the Task Force intends to share some of its services and resources with only certain groups to assist those groups in developing responses to an initial redistricting proposal by what you refer to as the "Democratically-controlled Legislature" heightens rather than lessens the partisan nature of the Task Force's undertaking as suggested by its name.
Finally, a review of the Task Force's purpose, as articulated in a March 4, 1991, memorandum forwarded by you to this Office, dispels any doubt regarding its purpose. Section 3 states, in full:
The purpose of the RRTF is to permit coordination within the Republican leadership on the issues of legislative and congressional redistricting. The Organization's activities will include monitoring legislative activities relating to redistricting, preparing and implementing a Republican redistricting alternative, and preparing for litigation necessary to insure compliance with state and federal requirements in all legislative and congressional redistricting plans. (emphasis supplied)
Although an express purpose of the Task Force includes insuring compliance with state and federal requirements, insuring such compliance is not its sole purpose. In fact, insuring compliance is noted as the last "activity" after "preparing and implementing a Republican redistricting alternative." The only "purpose" as stated is "coordination within the Republican leadership on the issues of legislative and congressional redistricting."
For all the above reasons, it is the opinion of this Office that the additional facts presented would not alter its previous conclusion that the activities of the Task Force are being undertaken, in the language of section 8, "for the purpose of . . . aiding or promoting . . . the interests of" the Republican Party.
II. Constitutional Issues
In the event that the additional factual circumstances which you present do not alter this Office's opinion, you ask that the Office reconsider its opinion on First Amendment constitutional grounds. For the reasons set forth below, it is the opinion of the Office that constitutional considerations and analysis support rather than undercut A0-89-27.
Initially, I note that this Office has addressed the issue of corporate contributions to special legal funds related to party activities on more than one occasion. In AO-84-11, the Office concluded that M.G.L. c.55, s.8 prohibited corporate contribution to a legal fund under consideration by the Democratic State Committee designed to defend litigation with respect to candidate access to the primary ballot. Neither that opinion nor AO-89-27, however, addressed the constitutional underpinning of the statute.
You have suggested that M.G.L. c.55, s.8 affects certain rights of free speech by prohibiting corporations from making contributions to candidates and political parties. Assuming that the First Amendment is implicated by campaign finances prohibiting corporate contributions under these circumstances, it could be constitutionally justified only by the government's compelling interest to avoid corruption or the appearance of corruption. See FEC v. National Conservative Political Action Comm. 470 US 480, 496-497 (1985) and Weld for Governor v. Director of the Office of Campaign and Political Finance, 407 Mass. 761,770, 556 N.E.2d 21,26 (1990).
However, the U.S. Supreme Court has recognized just such a compelling governmental interest in "the restriction of the influence of political war chests funneled through the corporate form." See Austin v. Michigan Chamber of Commerce, 110 S.Ct. 1391,1397 (1990) and cases cited therein. In Austin, the Supreme Court upheld a Michigan statute which prohibited corporate contributions except through a separately segregated fund. In commenting on the Michigan statute the Court noted:
[T]he corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public's support for the corporation's political ideas (citation omitted). The Act does not attempt "to equalize the relative influence of speakers on elections," (citation omitted); rather, it ensures that expenditures reflect actual public support for the political ideas espoused by corporations. Austin, supra at 1397-1398.
While section 8 of chapter 55 is very different in its structure from the Michigan statute, it is the long held view of this Office that its purpose is to prevent corruption or its appearance through the regulation of corporate participation in the political arena. Section 8 is also narrowly tailored to achieve this purpose. It does not apply to non-profit corporations but only to business or for-profit corporations. Further, although section 8 does not provide for separately segregated funds as the Michigan and federal statute do, nothing in section 8 or chapter 55 prohibit officers, directors and employees of corporations from giving directly to the Task Force or from forming a multi-candidate committee or so-called PAC to raise monies from their fellow employees, business associates or shareholders. See Op. Atty. Gen., November 6, 1980. Therefore, section 8 "ensures that expenditures reflect actual public support for the political ideas espoused by corporations."
You have also argued that the Office's conclusion herein may implicate certain First Amendment associational rights of political parties. If such rights are so implicated, however, it is the opinion of this Office that it would be justified by the compelling state interest noted above. Additionally, both the Supreme Court and Massachusetts' Supreme Judicial Court have recognized that:
States may enact laws to "prevent the disruption of the political parties from without" but not laws "to prevent the parties from taking internal steps affecting their own process for the selection of candidates". Weld, supra at 770 quoting Tashjian v. Republican Party of Conn., 479 US 208, 224 (1986).
To the extent section 8 as herein applied regulates political parties, it is the opinion of this Office that it is not, in any way, regulating the internal self government of political parties. Rather, it is prohibiting the potential, systematic corruption of the political process by prohibiting corporations from pouring vast sums of money into the redistricting process.
While you have also suggested that the activities of the Task Force will be in the public interest assuming its activities are limited to analyzing redistricting plans and preparing constitutionally acceptable alternatives, the Office cannot agree. While any redistricting plan must, as you say, be legal or illegal, plans can still be partisan. "The reality is that districting inevitably has and is intended to have substantial political consequences." Davis v. Bandemer, 478 US 109,129 (1986). Indeed, in Davis, the plurality opinion noted that many of the holdings in various redistricting cases:
[R]est on a conviction that the mere fact that a particular apportionment scheme makes it more difficult for a particular group in a particular district to elect the representatives of its choice does not render that scheme constitutionally infirm. Davis, supra at 131.
From the above discussion as well as the Supreme Court's discussion in Davis, supra at 128-133 (See also Gaffney v. Cummings, 412 US 735, 749-754), it is clear that redistricting plans may within certain limits favor one group or party over another, and still meet constitutional requirements. Therefore, even though any redistricting plan that the Task Force may offer to the Federal Courts must meet constitutional standards, it may also be designed to help the Republican Party. Indeed, given the described purpose of the Task Force, one would have to conclude that any redistricting plan submitted by the Task Force in a court proceeding would inevitably be designed to help or aid the Republican Party to the extent possible within constitutional limits. Even if the Task Force's only purpose and expenditures were limited to litigation activities, contributions from business corporations would be supporting the Republican Party.
For the reasons set forth above, it is the opinion of this Office that M.G.L. c.55, s.8 prohibits corporations from making contributions to the Republican Redistricting Task Force. Therefore, the conclusion set forth in Part 3 of AO-89-27 stands unchanged.
This opinion has been rendered solely in the context of M.G.L. c.55 and has been based on the representations in your letter, telephone conversations with the Office's General Counsel and other documentary information or correspondence received by the Office relative to this matter.
Should you have additional questions, please do not hesitate to contact this Office.
Very truly yours,
Mary F. McTigue