Weld for Governor v. Director of the Office of Campaign & Political Finance

O’Connor, J.

(dissenting). General Laws c. 55, § 6 (1988 ed.), provides in relevant part that “[a] political committee organized or operating on behalf of a candidate for the office of governor, lieutenant governor, attorney general, state secretary, treasurer and receiver general, or auditor” may receive and expend money or other things of value for certain purposes “provided, however, that no such committee may contribute to any other political committee or to the campaign fund of any other candidate.” Chapter 55, § 1, defines the term “ [contribution” as “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, for the purpose of influencing the nomination or election of said individual or candidate . . . and shall include any . . . transfer of money or anything of value between political committees.” Here, each candidate and political committee wants to buy buttons, stickers, and signs in part to promote the other’s candidacy. The plan is that the cost of the campaign items will be split evenly between the two candidates (including their committees). Thus, each candidate would expend money to provide to the other candidate the benefit of advertising and promoting the other’s candidacy. Such conduct would be a clear violation of the unambiguous statutory prohibition. Furthermore, nothing in the statute suggests that it would make a difference that the joint purchase would be designed to promote the payor’s, as well as the other candidate’s, candidacy or that the plan calls for reciprocal beneficial contributions.

The court appears to endorse the plaintiffs’ assertion that, “[i]f the expense is incurred primarily to promote the payor’s candidacy, it is an ‘expenditure’; if made primarily to promote the candidacy of someone other than the payor, it is a ‘contribution.’ ” That assertion has no support in the statutory language. Chapter 55, § 1, defines the term “contribution” as a contribution made for the purpose of influencing the nomination or election of another candidate, not as one made “primarily” for that purpose. Chapter 55, § 6, does expressly proscribe an “expenditure that is . . . primarily for *774the candidate’s or any other person’s personal use,” but the word “primarily” does not appear in connection with the definition of the term “contribution” in § 1 nor in connection with the mandate in § 6 “that no such committee may contribute to any other political committee or to the campaign fund of any other candidate.” By implying the word “primarily” where it does not appear, the court “violates the rule that where the Legislature has employed specific language in one paragraph [or sentence], but not in another [in the same statute], the language should not be implied where it is not present.” Commonwealth v. Galvin, 388 Mass. 326, 330 (1983), quoting Beeler v. Downey, 387 Mass. 609, 616 (1982).

The court asserts that G. L. c. 55, § 1, which is a criminal statute and therefore must be strictly construed against the government, defines both the word “[contribution” and the word “[expenditure” precisely the same way, that is, as a transfer of anything of value between two political committees. Ante at 764. Proceeding from that proposition, the court reasons that nothing in the statute gives guidance as to whether a purchase of campaign items by one candidate or his committee to advance the candidacy of another candidate is an allowed expenditure or ■ a disallowed contribution. Therefore, the court concludes, the plaintiffs’ proposed conduct cannot properly be viewed as violating the statute. The court is mistaken. The statutory definitions of “contribution” and “expenditure” are not precisely the same. They are significantly different. A contribution under G. L. c. 55, § 1, is a transfer of anything of value between two political committees for the purpose of influencing the nomination or election of the transferee. An expenditure under the same statute is a transfer madé for the purpose of influencing the nomination or election of the transferor. The statute clearly allows expenditures. However, it just as clearly prohibits a candidate or his or her committee from contributing to the campaign of another candidate, which is the conduct at issue here.

By interpreting the statute as permitting joint expenditures for buttons, bumper stickers, and signs advertising both can*775didates, the court avoids addressing the question whether G. L. c. 55, § 6, as applied to the plaintiffs, is constitutional, a question to which I shall return. Nevertheless, the court engages in considerable discussion concerning the constitutionality of the statute. The court concludes, ante at 770, that it is “reluctant to attribute to the Legislature an intent to enact a provision of doubtful constitutionality.” Consideration of the doubtful constitutionality of a statute in connection with its interpretation is indeed appropriate when the statute reasonably is susceptible of both constitutional and unconstitutional constructions. First Nat’l Bank v. Attorney Gen., 362 Mass. 570, 578 (1972). Id. at 595-596 (Quirico, J., concurring in the result). The statute in question, however, is not reasonably susceptible of two constructions. The statute can only reasonably be construed as prohibiting the contributions contemplated by the plaintiffs. If constitutional, the statute must be enforced. If it is unconstitutional, it must be struck down. The court exceeds its lawful power when it rewrites the statute even if it is motivated to do so by a desire to save it from constitutional infirmity (an infirmity which, in my judgment, does not exist).

Not only should the court avoid tampering with “the literalism of the definition of ‘contribution’ ” in the statute, ante at 765, in order to save it from constitutional infirmity, but also the court should refrain from departing from the plain language of the statute in order to make it more like the Federal Election Campaign Act, 2 U.S.C. §§ 431-456 (1988), a statute which, perhaps, the court prefers. The Federal statute’s express exemption of joint purchases of campaign buttons, stickers, and signs is notably absent from G. L. c. 55. The court ultimately concludes that “shared expenses, evenly apportioned, are not forbidden contributions when applied to facts indicating [among other things] that... the items jointly purchased do not include general public political advertising, such as billboards and newspaper or television advertisement, but are confined to buttons, bumper stickers, and signs; [and that] the candidates have carefully allocated the costs between themselves in a manner which *776reflects the relative benefit reasonably expected to be derived by each candidate.” Ante at 771-772. Thus, ostensibly as a matter of statutory construction, the court imports wholesale into G. L. c. 55 provisions not expressed in c. 55 but only contained in the Federal Election Campaign Act. One might reasonably ask what provisions in c. 55. provide a basis for distinction between joint expenditures for campaign buttons, bumper stickers, and signs, on the one hand, and joint expenditures for newspaper, billboard, and television advertising on the other.

Neither is the court justified in failing to give effect to the statute’s “literal” definition of “contribution” by the fact that to do so “would have the effect of prohibiting altogether joint candidacies for Governor and Lieutenant Governor in primary elections.” Ante at 768. Whether that is true is questionable but need not be debated. The Legislature, not the court, is charged with enacting the law, and may, if it chooses to, enact a statute that discourages joint candidacies for Governor and Lieutenant Governor in primary elections.

Article 86 of the Amendments to the Massachusetts Constitution provides that, after the candidates for Governor and Lieutenant Governor have been nominated, the nominees of each party shall be placed together on the ballot and, if voted for, must be voted for as a team. The court appears to reason that, since a party’s candidates for those offices must be voted for as a team in the general election, they must be permitted to make joint expenditures in the general election campaign, and therefore the Legislature cannot reasonably be thought to have intended to proscribe such expenditures in primary campaigns. Once again, the statutory language unambiguously forbids joint expenditures. Perhaps, some day, in another case, the court will be required to consider the constitutionality and application of the statute in a case involving a general election but, for the purposes of this case, which involves a primary only, the statute is clear and, in my view, constitutional as applied.

I turn now to a discussion of the constitutionality of G. L. c. 55, § 6, as I would interpret it. I do so only because my *777conclusion that the statute lawfully and effectively prohibits the joint expenditures at issue depends on the statute’s being constitutional. Of course, it is true that limitations on political expenditures and contributions implicate First Amendment values. It is also true, as the court observes, ante at 770, that “preventing corruption or the appearance of corruption [is] the only interest so far held to be sufficiently compelling to justify First Amendment burdens” on political expression and association. Buckley v. Valeo, 424 U.S. 1 (1976), teaches that the amount of money or other thing of value an individual may expend in support of a candidacy may not be constitutionally restricted if the expenditure is totally independent of the candidate, that is, neither prearranged nor solicited by the candidate or on the candidate’s behalf, id. at 44-48, but expenditures that are requested or coordinated or prearranged may be treated as contributions, as the Federal Election Campaign Act treats them, id at 46-47 n.53, and constitutionally may be restricted. Id. at 26-38. Contributions may be restricted consistent with the First Amendment because of the compelling governmental interest in limiting contributions so as to avoid either the actuality or the appearance of corruption flowing from the potential for quid pro quo arrangements between candidates and their benefactors. Id. The same potential for corruption or the appearance of corruption that accompanies contributions to candidates by noncandidates is present when contributions are made by candidates to other candidates. The First Amendment is not violated by a statute prohibiting such conduct.

General Laws c. 55, § 1, defines a “[contribution” as a transfer of anything of value between two political committees for the purpose of influencing the nomination or election of the transferee. Neither § 1 nor § 6 distinguishes transfers made after solicitation, consultation, or by prearrangement from totally unsolicited and uncoordinated independent transfers. On its face then, the statute may literally be read as prohibiting a candidate or his or her political committee from making a completely independent expenditure for the *778purpose of promoting another candidate’s candidacy. To that limited extent, the statute is overbroad. However, the minimal overbreadth of the statute does not require that it be struck down. The likelihood of candidates or their committees expending funds for the political advantage of other candidates, without solicitation, coordination, or prearrangement is miniscule. Furthermore, the likelihood of prosecution for such conduct is virtually nonexistent in view of the interpretative bulletin issued by the agency charged with the statute’s enforcement, the office of campaign and political finance (OCPF), defining a prohibited joint expenditure as “any expenditure that is made in cooperation or consultation with any candidate, or a nonelected political committee organized on behalf of a candidate, or any agent of a candidate, or made in concert with, or at the request or suggestion of, any candidate, or any nonelected political committee organized on behalf of a candidate or agent of such candidate.” The overbreadth doctrine is designed only to prevent actual and substantial chilling of protected speech. Massachusetts v. Oakes, 109 S. Ct. 2633, 2638 (1989). No such chilling is threatened by G. L. c. 55, §§ 1, 6.

I would order the entry of a declaration that G. L. c. 55, § 6, prohibits the expenditures that are at issue in this case.