Filed: Dec. 22, 2011
Latest Update: Feb. 22, 2020
Summary: 09-0994-cv (Lead) Ognibene, et al. v. Parkes, et al. 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 October Term 2010 4 (Argued: October 18, 2010 Decided: December 21, 2011) 5 Docket Nos. 09-0994-cv (Lead) 09-1432-cv (Con) 6 _ 7 TOM OGNIBENE, YVETTE VELAZQUEZ BENNETT, VIVIANA VAZQUEZ- 8 HERNANDEZ, MARTIN DILAN, MARLENE TAPPER, ROBERT PEREZ, 9 FRAN REITER, SHEILA ANDERSEN-RICCI, MARTINA FRANCA 10 ASSOCIATES, LLC, REITER/BEGUN ASSOCIATES, LLC, DENIS 11 GITTENS, OSCAR PEREZ, KING’S COU
Summary: 09-0994-cv (Lead) Ognibene, et al. v. Parkes, et al. 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 October Term 2010 4 (Argued: October 18, 2010 Decided: December 21, 2011) 5 Docket Nos. 09-0994-cv (Lead) 09-1432-cv (Con) 6 _ 7 TOM OGNIBENE, YVETTE VELAZQUEZ BENNETT, VIVIANA VAZQUEZ- 8 HERNANDEZ, MARTIN DILAN, MARLENE TAPPER, ROBERT PEREZ, 9 FRAN REITER, SHEILA ANDERSEN-RICCI, MARTINA FRANCA 10 ASSOCIATES, LLC, REITER/BEGUN ASSOCIATES, LLC, DENIS 11 GITTENS, OSCAR PEREZ, KING’S COUN..
More
09-0994-cv (Lead)
Ognibene, et al. v. Parkes, et al.
1 UNITED STATES COURT OF APPEALS
2 FOR THE SECOND CIRCUIT
3 October Term 2010
4 (Argued: October 18, 2010 Decided: December 21, 2011)
5 Docket Nos. 09-0994-cv (Lead) 09-1432-cv (Con)
6 _____________________________________
7 TOM OGNIBENE, YVETTE VELAZQUEZ BENNETT, VIVIANA VAZQUEZ-
8 HERNANDEZ, MARTIN DILAN, MARLENE TAPPER, ROBERT PEREZ,
9 FRAN REITER, SHEILA ANDERSEN-RICCI, MARTINA FRANCA
10 ASSOCIATES, LLC, REITER/BEGUN ASSOCIATES, LLC, DENIS
11 GITTENS, OSCAR PEREZ, KING’S COUNTY COMMITTEE OF THE NEW
12 YORK STATE CONSERVATIVE PARTY, and NEW YORK STATE
13 CONSERVATIVE PARTY,
14 Plaintiffs-Appellants,
15 -v.-
16 JOSEPH P. PARKES, S.J., in his official capacity as Chairman of the New
17 York City Campaign Finance Board, DALE C. CHRISTIANSEN, JR., in his
18 official capacity as Member of the New York City Campaign Finance Board,
19 KATHERYN C. PATTERSON, in her official capacity as Member of the New
20 York City Campaign Finance Board, MARK S. PIAZZA, in his official
21 capacity as Member of the New York City Campaign Finance Board, MARK
22 DAVIES, in his official capacity as Executive Director of the New York City
23 Conflicts of Interests Board, MONICA BLUM, in her official capacity as
24 Member of the New York City Conflicts of Interests Board, STEVEN
25 ROSENFELD, in his official capacity as Member of the New York City
26 Conflicts of Interests Board, ANDREW IRVING, in his official capacity as
27 Member of the New York City Conflicts of Interests Board, ANGELA M.
28 FREYRE, in her official capacity as Member of the New York City Conflicts of
29 Interests Board, and MICHAEL McSWEENY, in his official capacity as
30 Acting City Clerk of New York City,
31 Defendants-Appellees.
32 _____________________________________
1
1 Before: CALABRESI, LIVINGSTON, Circuit Judges, and Crotty, District
2 Judge.*
3 Plaintiffs-Appellants1 brought this action in February 2008 against the
4 Defendants-Appellees,2 challenging the constitutionality of certain provisions of
5 New York City’s political campaign finance and lobby laws that (1) limit
6 campaign contributions by individuals and entities that have business dealings
7 with the City; (2) exclude such contributions from matching with public funds
8 under the public financing scheme; and (3) expand the prohibition on corporate
9 contributions to include partnerships, LLCs, and LLPs. Plaintiffs appeal from
10 a February 6, 2009 decision of the United States District Court for the Southern
11 District of New York (Swain, J.) granting the Defendants’ motion for summary
12 judgment. We affirm the district court’s dismissal of Plaintiffs’ challenges as to
13 all three provisions.
14 Affirmed.
15 Judge Calabresi and Judge Livingston concur in separate opinions.
16
*
The Honorable Paul A. Crotty, District Judge of the United States District Court for the
Southern District of New York, sitting by designation.
1
Plaintiffs include New York City voters, aspiring candidates for local office, a business
owner, lobbyists and individuals associated with lobbyists, limited liability companies, and political
parties.
2
Defendants are members of New York City’s Campaign Finance Board and other City
representatives.
2
1 JAMES BOPP, JR., Bopp, Coleson & Bostrom,
2 Terre Haute, IN, for Plaintiffs-Appellants.
3
4 JANE L. GORDON, Senior Counsel (Edward
5 F.X. Hart, Jonathan Pines, Lisa F. Grumet,
6 Andrew J. Rauchberg, on the brief), Corporation
7 Counsel of the City of New York, New York,
8 NY, for Defendants-Appellees.
9 PAUL A. CROTTY, District Judge:
10
11 Appellants seek declaratory and injunctive relief, alleging that recently-
12 enacted amendments to the New York City Administrative Code, commonly
13 known as the “pay-to-play” rules, violate the First Amendment to the U.S.
14 Constitution by unduly burdening protected political speech and association, the
15 Fourteenth Amendment by denying equal protection of the laws, and the Voting
16 Rights Act, 42 U.S.C. § 1973.3 The challenged provisions (1) reduce below the
17 generally-applicable campaign contribution limits the amounts that people who
18 have business dealings with the City, including lobbyists, can contribute to
19 political campaigns, N.Y.C. Admin. Code § 3-703(1-a) (for candidates who
20 participate in the City’s optional public financing program, set forth in N.Y.C.
21 Admin. Code § 3-703 (“participating candidates”)), 3-719(2)(b) (for candidates
22 who do not participate in this program (“non-participating candidates”)); (2) deny
3
The complaint alleges that these provisions are unconstitutional, both facially and as
applied. The opinion below considered only the facial challenges. See Ognibene v. Parkes, 599 F.
Supp. 2d 434, 438, 461 (S.D.N.Y. 2009).
3
1 matching funds for contributions by people who have business dealings with the
2 City and certain people associated with lobbyists, N.Y.C. Admin. Code §§ 3-
3 702(3), 3-703(1-a); and (3) extend the existing prohibition on corporate
4 contributions to partnerships, LLCs, and LLPs, N.Y.C. Admin. Code §§ 3-
5 703(1)(l) (for participating candidates), 3-719(2)(b) (for non-participating
6 candidates). Appellants argue, inter alia, that the lack of evidence of actual pay-
7 to-play corruption in City politics means that there is no legitimate interest to
8 be protected; that the regular contribution limits already in place sufficiently
9 address any possible interest in reducing actual or perceived corruption; and
10 that Citizens United v. Federal Election Commission, 130 S. Ct. 876 (2010)
11 prohibits all contribution limits based on the source’s identity. The district court
12 rejected appellants’ arguments and dismissed the claims on summary judgment.4
13 We affirm as to all three provisions, finding that the laws are closely drawn to
14 address the significant governmental interest in reducing corruption or the
15 appearance thereof.
16 I. Facts
17 In 1988, after a recent wave of local scandals, the New York City Council
18 passed the Campaign Finance Act (“CFA”), establishing the Campaign Finance
4
The district court decision predates Citizens United, so it did not consider this third
argument.
4
1 Program (“Program”). (A-819.) The Campaign Finance Board (“Board”)
2 administers the Program and provides public matching funds to candidates
3 running for the three citywide offices of Mayor, Comptroller, Public Advocate;
4 the five offices of Borough President; and the fifty-two offices of the City Council.
5 The CFA imposes certain obligations on all candidates, including the filing of
6 financial disclosure statements reporting contributions and expenditures,
7 limitations on the amount of contributions from any single donor, and the
8 obligation to respond to the Board’s requests to verify compliance with the
9 Program. N.Y.C. Admin. Code § 3-701, et seq. The CFA also limits per-person
10 contributions for all covered elections in a single calendar year to $4,950 for
11 Mayor, Comptroller, or Public Advocate; $3,850 for Borough President; and
12 $2,750 for City Council.5 Id. § 3-703(1)(f).
13 Additionally, candidates who seek to participate in the public financing
14 system must agree to limitations on the total amount of money the campaign
15 spends promoting the candidate’s nomination or election. A participating
16 candidate’s campaign receives public matching funds for all eligible individual
17 private contributions from New York City residents of up to $175 at a rate of six
18 dollars in public funds for every one dollar in private contributions.
Id. §§ 3-703,
5
Pursuant to Administrative Code § 3-703(7), these figures were increased in 2002 to reflect
changes in the Consumer Price Index.
5
1 3-705(1), (2). Contributions from organizations, however, including unions and
2 Political Action Committees (“PACs”), are not eligible for matching. Id. § 3-
3 702(3)
4 In 1998, the New York City Charter Revisions Commission (“Commission”)
5 sought to resolve problems that the existing law did not address. (A-314-A-316.)
6 It proposed, and the City’s voters passed by referendum, a Charter amendment
7 that directed the Board to prohibit corporate contributions for all participating
8 candidates; required these candidates to disclose contributions from individuals
9 and organizations doing business with the City; and directed the Board to
10 promulgate rules fleshing out these “doing business” limitations. N.Y.C. Charter
11 § 1052(11)(a), (12)(a). In its recommendation, the Commission identified
12 concerns about contractor and lobbyist contributions, but noted the lack of
13 evidence that such contributions had actually influenced the award of a
14 particular contract or passage of a bill. Report of the New York City Charter
15 Revision Commission 12-13 (Aug. 20, 1998) (“1998 Commission Report”).
16 Nevertheless, the Commission concluded that there was “no doubt that these
17 contributions have a negative impact on the public because they promote the
18 perception that one must ‘pay-to-play.’”
Id. at 19. The City Council later
19 enacted a separate ban on corporate contributions to all candidates, including
20 non-participating candidates.
6
1 In 2006, after several public hearings and studies, the Board reported that
2 over twenty percent of the contributions in the 2001 and 2005 election cycles
3 were from individuals and entities doing business with the City, who comprised
4 only five percent of contributors, and that large contributions were more likely
5 than small contributions to come from such donors. N.Y.C. Campaign Fin. Bd.,
6 Interim Report on “Doing Business” Contributions 12, 13 (June 19, 2006)
7 (“Interim Report”). In addition, incumbents–considered to have greater
8 influence on city decisions–were more likely to receive these large donations
9 than challengers. N.Y.C. Campaign Fin. Bd., Public Dollars for the Public Good:
10 A Report on the 2005 Elections 122 (2006) (“2005 Election Report”). In order to
11 improve the CFA, the Board recommended banning all organizational
12 contributions (including partnerships, LLCs, PACs, and unions) and regulating
13 contributions by individuals and entities doing business with the City. 2005
14 Election Report, 120, 122.
15 That year, the City passed Local Laws 15 and 17, which created a
16 mandatory electronic filing system for lobbyists; required full lobbyist disclosure
17 of all fundraising and consulting activities; banned all gifts from lobbyists to City
18 Officials; and excluded contributions from lobbyists and the individuals
19 identified on their statements of registration from the definition of “matchable
20 contribution.” N.Y.C. Admin. Code §§ 3-213, 3-216.1, 3-225, 3-702(3)(g). This
7
1 latter category of exclusions includes the lobbyist’s spouse or domestic partner
2 and, if the lobbyist is an organization, any officer or employee who engages in
3 lobbying activity, as well as his or her spouse or domestic partner.
4 In 2007, the City Council voted 44-4 to pass Local Law 34, requiring
5 disclosure of, and restricting contributions from, individuals and entities who
6 have business dealings with the City, as defined in the CFA. The law lowers
7 these donors’ contribution limits approximately twelve-fold, to $400 (from the
8 generally-applicable level of $4,950) for the three City-wide offices; to $320 (from
9 $3,850) for Borough offices; and to $250 (from $2,750) for City Council.6 The law
10 also makes these contributions ineligible for public matching, and extends the
11 ban on corporate contributions to LLCs, LLPs, and partnerships. Id. §§ 3-
12 703(1)(l), 3-703(1-a), 3-719(2)(b). The corresponding City Council Committee
13 Report referred to the Board’s 2005 Election Report and stated that,
14 [w]hile there is nothing intrinsically wrong with contributions from those
15 doing business with the City, the ability of such individuals to contribute
16 could create a perception, regardless of whether such perception is
17 accurate, that such individuals have a higher level of access to the City’s
18 elected officials. It is important to eradicate this perception and reduce
19 the appearance of undue influence associated with contributions from
20 individuals doing business with the City.
6
These lower limits are not indexed for inflation. See N.Y.C. Admin. Code § 3-703(7).
8
1 (N.Y.C. Council, Comm. on Gov’tal Affairs, Report of the Governmental Affairs
2 Division, for Int. No. 586-2007 24-25 (June 12, 2007) (“Committee Report”).) The
3 Committee Report explained that the expansion of the corporate contribution
4 ban addressed a “loophole” that allowed similarly structured business entities
5 to circumvent the contribution limits.
6 The “doing business” limits apply to contributions from any natural person
7 who is a chief executive officer, chief financial officer, and/or chief operating
8 officer; serves in a senior managerial or equivalent capacity; or has an interest
9 exceeding ten percent in an entity that has “business dealings” with the City or
10 affiliate agency, unless that person is the candidate or a relative. N.Y.C. Admin.
11 Code § 3-703(1-a). “Business dealings” include: (1) contracts greater than or
12 equal to $100,000 for the procurement of goods, services, or construction; (2) real
13 property acquisitions or dispositions; (3) applications for approval of transactions
14 involving office space, land use, or zoning changes; (4) certain concessions and
15 franchises greater than or equal to $100,000; (5) grants greater than or equal to
16 $100,000; (6) economic development agreements; (7) contracts for investment of
17 pension funds; and (8) transactions with lobbyists.7 Id. § 3-702(18).
7
Contracts and concessions awarded through publicly-advertised competitive sealed bidding,
as well as emergency contracts, are excluded from the calculation. N.Y.C. Admin. Code § 3-
702(18)(a)(i). Separate rules govern transactions providing affordable housing. Id. § 3-702(18)(a).
9
1 Section 3-702 of the Administrative Code contains two definitions of
2 “lobbyist”: The first is narrow, referencing § 3-211's definition of “every person
3 or organization retained, employed or designated by any client to engage in
4 lobbying.” The second is broader, encompassing anyone included in § 3-211, as
5 well as the lobbyist’s spouse or domestic partner; unemancipated children; and,
6 for entities, the organization’s officers and employees who engage in lobbying or
7 work for a division of the organization that engages in lobbying activities and
8 their family members.8 Id. § 3-702(16). Appellees concede that the narrower
9 definition applies to the doing business limitations, even though the broader
10 definition has been used in the past.9 (Appellee’s Br. 11 n.5). Contributions from
11 individuals who are affiliated with lobbyists (i.e., included in the broader
12 definition) are ineligible for matching even if they are not, under the narrower
13 lobbyist definition, subject to the lower “doing business” limits.
14 As of June 30, 2008, New York City agencies (excluding affiliated entities)
15 held 19,578 open contracts worth approximately $55.4 billion. (Simpson Decl.
16 ¶ 5). A wide range of for-profit and non-profit entities qualify as having business
17 dealings with the City, including Con Edison, Waste Management of New York
8
All of these individuals must be included in the lobbyist’s statement of registration. Id. § 3-
213(c)(1).
9
This interpretation is supported by the language of § 3-702(18), which, in defining “business
dealings,” provides that a lobbyist as defined by § 3-211 engages in business dealings.
10
1 LLC, the New York City Ballet, the Legal Aid Society, the Brooklyn Botanic
2 Garden Corporation, various health and social services providers, day care
3 centers, religious organizations, and labor organizations. See generally Doing
4 Business Portal, http://www.nyc.gov/html/doingbiz/home.html (last visited Aug,
5 10, 2011). Although several labor organizations and union-affiliated entities
6 have business dealings on account of procurement contracts with the City,
7 “collective bargaining with City employee unions is a distinct process that is
8 governed by State law.” (Simpson Decl. ¶ 8). As a result, the procurement rules
9 (and, consequently, the “doing business” limits) do not apply to collective
10 bargaining with City unions or to employer-employee relationship for non-
11 unionized employees. (Id.)
12 Appellants filed an original and amended complaint in February 2008 and,
13 in April 2008, moved for a preliminary injunction on some of the claims asserted,
14 raising facial challenges to these three provisions. After the district court
15 postponed the hearing on injunctive relief until the trial on the merits, the
16 Appellees moved for summary judgment. The parties then stipulated that there
17 was no need for an evidentiary proceeding in connection with the motions.
18 Several amicus curiae briefs were filed in support of Appellees, both by public
19 interest organizations and by City Council candidates.
11
1 II. The District Court Decision on Motion for Summary Judgment
2 By Order dated February 6, 2009, the district court denied Appellants’
3 motion for injunctive relief and granted Appellee’s motion for summary
4 judgment on the same grounds: that the challenged limits served a sufficiently
5 important governmental interest–addressing the reasonable concern about
6 actual and apparent corruption by those doing business with the City. While
7 there was no recent evidence of actual corruption with respect to campaign
8 contributions, the district court reasoned, given the public’s perception of
9 continuing corruption, fueled by actual pay-to-play scandals in the 1980s, the
10 City properly imposed the challenged limits to combat corruption, correct
11 misperceptions, and instill public confidence in the City’s political and
12 governmental processes. 599 F. Supp. 2d at 445-46. The court also found that
13 the contribution limits were closely drawn to respond to this interest in
14 eliminating actual and apparent corruption, rejecting Appellants’ arguments
15 concerning the failure to index for inflation and viewpoint discrimination.
Id. at
16 454-55.
17 The district court subjected the non-matching provisions to the same
18 analysis and concluded that they were permissible.
Id. at 456. It reasoned that
19 the legislature should not be required to use taxpayer dollars to match
20 contributions it has determined present a risk of corruption. (Id.) The court also
21 held that using the broader definition of lobbyist does not render these
22 provisions overbroad because this expanded reach is necessary to prevent
23 circumvention of the contribution limits. (Id. at 457.)
12
1 Finally, the district court upheld the ban on contributions from
2 partnerships, LLCs, and LLPs for the same reasons that justify prohibiting
3 corporate contributions, specifically, to prevent circumvention of the valid
4 contribution limits and the use of business forms to deploy for political ends
5 business assets amassed for business reasons. (Id. at 459-60.) The court also
6 rejected the argument that this prohibition is overbroad, underinclusive, or
7 overinclusive.
8 III. Analysis
9 A. Standard of Review
10 A circuit court reviews a district court’s grant of summary judgment de
11 novo. Weinstock v. Columbia Univ., 224 F.3d 33, 40 (2d Cir. 2000). The
12 Court should affirm an order granting summary judgment “only when no
13 genuine issue of material fact exists and the movant is entitled to judgment
14 as a matter of law.” Riegel v. Medtronic, Inc.,
451 F.3d 104, 108 (2d Cir.
15 2006). The parties here agree that these motions present no issue of material
16 fact.
17 The party requesting permanent injunctive relief must demonstrate (1)
18 irreparable harm (here, a constitutional violation) and (2) likelihood of actual
19 success on the merits. Cartier v. Symbolix, Inc.,
454 F. Supp. 2d 175, 186
20 (S.D.N.Y. 2006); see also New York ex rel. Spitzer v. Operation Rescue Nat’l,
21
273 F.3d 184, 193 (2d Cir. 2001) (applying this standard to its review of a
13
1 decision on a preliminary injunction). Denials of injunctive relief, like grants
2 of summary judgment, are reviewed de novo when they concern rights under
3 the First and Fourteenth Amendments. See Ferris v. Cuevas, 118 F.3d 122,
4 125 & n.3 (2d Cir. 1997); Nat’l Awareness Found. v. Abrams,
50 F.3d 1159,
5 1164 (2d Cir. 1995). In such cases, “an appellate court has an obligation to
6 ‘make an independent examination of the whole record’ in order to make sure
7 that ‘the judgment does not constitute a forbidden intrusion on the field of
8 free expression.’” Bose Corp. v. Consumers Union of U.S., Inc.,
466 U.S. 485,
9 499 (1984) (quoting New York Times Co. v. Sullivan,
376 U.S. 254, 284-86
10 (1964)).
11 B. Applicable Legal Standards
12 The Government bears the burden of justifying its contribution limits in
13 light of a facial challenge. Nixon v. Shrink Missouri Gov’t PAC,
528 U.S. 382,
14 387-88 (2000).
15 The judiciary owes special deference to legislative determinations
16 regarding campaign contribution restrictions. See, e.g., Fed. Election
17 Comm’n v. Beaumont,
539 U.S. 146, 155 (2003); McConnell v. Fed. Election
18 Comm’n,
540 U.S. 93, 137 (2003). While paying deference, the judiciary must
19 also protect the fundamental First Amendment interest in political speech.
20 In evaluating constraints on such speech and related activity, Buckley v.
14
1 Valeo distinguished between campaign expenditures and campaign
2 contributions. 424 U.S. 1 (1976). Strict scrutiny applies to restraints on the
3 former, while limits on the latter are more leniently reviewed because they
4 pose only indirect constraints on speech and associational rights. See
5
Beaumont, 539 U.S. at 161-62 (holding that restrictions on the activity of
6 contributing to a candidate’s campaign are “merely ‘marginal’ speech
7 restrictions subject to relatively complaisant review”); Fed. Election Comm’n
8 v. Colo. Republicans,
533 U.S. 431, 440 (2001);
Buckley, 424 U.S. at 20-21.
9 For this reason, contribution limits and bans are permissible as long as they
10 are closely drawn to address a sufficiently important state interest. See, e.g.,
11 Davis v. Fed. Election Comm’n,
554 U.S. 724, 737 (2008); Beaumont,
539 U.S.
12 at 161;
Buckley, 424 U.S. at 25; Green Party of Conn. v. Garfield,
616 F.3d
13 189 (2d Cir. 2010).
14 In certain cases, however, contribution restrictions may severely impact
15 political dialogue, for example by preventing “candidates and political
16 committees from amassing the resources necessary for effective advocacy.”
17
Buckley, 424 U.S. at 21. This question focuses on differences in kind, rather
18 than of degree.
Id. at 30. A showing of special justification is required for
19 such restrictions to be closely drawn. See Randall v. Sorrell,
548 U.S. 230,
20 261 (2006).
15
1 The Supreme Court has consistently held that the prevention of actual
2 and perceived corruption qualifies as a sufficiently important state interest.
3 See, e.g., McConnell, 540 U.S. at 143; Shrink
Missouri, 528 U.S. at 390;
4
Buckley, 424 U.S. at 30; see also
Davis, 554 U.S. at 740-41 (noting that the
5 use of personal campaign funds, as opposed to contributions, actually reduces
6 the threat of corruption). It is not necessary to produce evidence of actual
7 corruption to demonstrate the sufficiently important interest in preventing
8 the appearance of corruption. See
McConnell, 540 U.S. at 150. On the other
9 hand, “mere conjecture” is insufficient. See Shrink
Missouri, 528 U.S. at 392.
10 That is, the threat of corruption cannot be “illusory.”
Buckley, 424 U.S. at 27.
11 “The quantum of empirical evidence needed to satisfy heightened judicial
12 scrutiny . . . will vary up or down with the novelty and plausibility of the
13 justification raised.”
Id.
14 This Court must consider three important decisions that have issued
15 subsequent to the district court’s opinion: Citizens United v. Federal Election
16 Commission,
130 S. Ct. 876 (2010); Arizona Free Enterprise Club’s Freedom
17 Club PAC v. Bennett,
131 S. Ct. 2806 (2011); Green Party of Connecticut v.
18 Garfield,
616 F.3d 189 (2d Cir. 2010).
19 In Citizens United, the Supreme Court held that the government
20 cannot prohibit independent expenditures in support of a political candidate
16
1 based on the source’s corporate identity. 130 S. Ct. 876. Contrary to
2 Appellants’ exhortations, however, Citizens United applies only to
3 independent corporate expenditures. It reaffirms existing precedent on the
4 propriety of contribution limits. It therefore has no impact on the issues
5 before us in this case:
6
7 [U]nlike limits on independent expenditures, [contribution limits] have
8 been an accepted means to prevent quid pro quo corruption. Citizens
9 United has not made direct contributions to candidates, and it has not
10 suggested that the Court should reconsider whether contribution limits
11 should be subject to rigorous First Amendment scrutiny.
12 Citizens United v. Fed. Election Comm’n,
130 S. Ct. 876 (2010) (citations
13 omitted). Citizens United confirmed the continued validity of contribution
14 limits, noting that they most effectively address the legitimate governmental
15 interest, identified by Buckley, in preventing actual or perceived corruption.
16
Id. at 909-10 (quoting the standard of Fed. Election Comm’n v. Nat’l Right to
17 Work Comm.,
459 U.S. 197 (1982)); see also In re Cao, Nos. 10-30080 & 10-
18 30146,
2010 U.S. App. LEXIS 19056, *9 (5th Cir. 2010) (holding that Citizens
19 United applies to independent campaign expenditures and has no relevance
20 to contribution limits). Indeed, the Court reiterated that the wealth amassed
21 by corporations and business interests is more effectively used to obligate
22 legislators when spent on contributions, rather than independent
17
1 expenditures, over which the candidate has less control. See Citizens United,
2 130 S. Ct. at 908-09.
3 Since the Supreme Court preserved the distinction between
4 expenditures and contributions, there is no basis for Appellants’ attempt to
5 broaden Citizens United. Appellants’ selective and misleading quotes
6 carefully skip over the Court’s clear distinction between limits on
7 expenditures and limits on contributions.10 (See, e.g., Reply Br. 3). The
8 Supreme Court has repeatedly stated that the Circuit Courts are to apply the
9 law as it exists, unless it is expressly overruled. See Agostini v. Felton, 521
10 U.S. 203, 237 (1997) (“If a precedent of this Court has direct application in a
11 case, yet appears to rest on reasons rejected in some other line of decisions,
12 the Court of Appeals should follow the case which directly controls, leaving to
13 this Court the prerogative of overruling its own decisions.” (quoting Rodriguez
14 de Quijas v. Shearson/Am. Exp., Inc.,
490 U.S. 477, 484 (1989)). Citizens
10
Appellants argue that the anti-influence theory is not sufficient to justify contribution
limits, quoting from Citizens United: “Reliance on a generic favoritism or influence theory is at odds
with standard First Amendment analysis because it is unbounded and susceptible to no limiting
principle.” 130 S. Ct. at 910 (internal quotations omitted). But the Court made clear that it was
dealing with independent corporate expenditures, not with limits or even bans on campaign
contributions (or the source of contributions). Appellants twist Buckley so that it is only applicable to
quid pro quo corruption. But quid pro quo is already covered by bribery laws. Instead, Buckley
expressly approves restrictions on campaign contributions to facilitate the prevention of all actual
and apparent corruption.
18
1 United left Buckley intact, and it is not for this Court to stretch Citizens
2 United.
3 After handing down Citizens United, the Supreme Court invalidated an
4 Arizona public financing scheme under which public matching funds were
5 triggered by a privately financed candidate's level of expenditures. Bennett,
6 131 S. Ct. 2806. Arizona gives publicly financed candidates an initial
7 allotment of public funds to begin their campaigns. Under the challenged
8 law, if a privately financed, opposing candidate's expenditures (combined with
9 independent expenditures in support of the privately financed candidate and
10 opposed to the publicly financed candidate) exceeded the amount of this
11 initial outlay, the publicly financed candidate received a proportionate
12 amount of additional matching funds, up to twice the initial amount.
Id. at
13 2814-15.
14 The Supreme Court determined that the provision posed a “markedly
15 more significant burden” than the Millionaire's Amendment struck down in
16 Davis v. Federal Election Commission,
128 S. Ct. 2759, particularly because it
17 effectively punished the nonparticipating candidate for spending his own
18 money on his own campaign.
Bennett, 131 S. Ct. at 2819. The Court
19 repeated its holding that there is no compelling state interest in leveling the
20 playing field,
id. at 2825; and concluded that Arizona's proffered interest in
19
1 preventing corruption and its appearance did not justify the burden posed on
2 a candidate's expenditures of his own funds. Id. at 2826.11
3 Bennett binds us, but for reasons we explain later, it does not control
4 the outcome in this case. Bennet reaffirmed several key holdings: (1) that the
5 lower closely drawn standard applies to contribution
limits, 131 S. Ct. at
6 2817; (2) that preventing corruption and its appearance is a compelling state
7 interest,
id. at 2825; and (3) that public financing is still a valid means of
8 funding political candidacy.
Id. at 2828.
9 In addition, this Court recently struck down the State of Connecticut’s
10 ban on lobbyist contributions. Green Party,
616 F.3d 189. The Court found
11 that there was “insufficient evidence to infer that all contributions made by
12 state lobbyists give rise to an appearance of corruption.”
Id. at 206 (emphasis
13 in original). It reasoned that an outright ban was not closely drawn because a
14 limit would have effectively addressed the appearance of corruption created
11
We flatly reject Appellants’ argument, submitted in its June 28, 2011 letter, that “Justice
Kagan, writing in dissent in [Bennett], opines that contribution limits are ineffective at preventing
corruption.” This is a misciting of Justice Kagan’s opinion. She does not draw the conclusion that
contribution limits are per se ineffective. Rather, she poses a hypothetical in which two States are
“plagued by a corrupt political system” in which “candidates for public office accept large campaign
contributions in exchange for the promise that, after assuming office, they will rank the donors'
interests ahead of all others.” Bennett, 131 S. Ct. at 2829 (Kagan, J., dissenting). In such dire
circumstances, contribution limits alone may be insufficient and easily circumvented through
bundling, requiring further regulation. The Court notes that, under Green Party, such a history of
actual corruption would merit an outright ban on troublesome contributions. This does not mean
that contribution limits are always ineffective; they may adequately address less drastic
circumstances. For this reason, the relevant analysis requires that the remedy be closely drawn.
20
1 by lobbyist contributions. Id. at 207 & n.15 (noting that because
2 Connecticut's recent corruption scandals “in no way implicated lobbyists,” “a
3 limit on lobbyist contributions would adequately address the state’s interest
4 in combating corruption and the appearance of corruption on the part of
5 lobbyists” (emphasis in original)). Implicit in the Court’s reasoning is the
6 determination that a recent history of corruption is not required for limits to
7 pass constitutional review.
8 Green Party sustained a ban on contributions from state contractors
9 because they had been implicated in a series of recent scandals.
Id. at 204-05.
10 While a limit may address the actual and perceived corruption, it does not
11 entirely eliminate it because some exchange of money is still allowed. When
12 the appearance of corruption is particularly strong due to recent scandals,
13 therefore, a ban may be appropriate.
14 Appellants urge us to expand Citizens United, Bennett, and Green
15 Party to invalidate the three provisions they challenge. We conclude,
16 however, that their arguments do not comport with the express language and
17 reasoning of these opinions.
18 C. “Doing Business” Contribution Limit
19 The doing business limitations have three characteristics that place
20 them outside the scope of Citizens United and Green Party: First, they deal
21
1 with contributions (as opposed to expenditures). Second, they are limits (as
2 opposed to outright bans). Third, they address the appearance of corruption
3 (as opposed to the appearance of influence). The doing business limitations
4 are only indirect constraints on protected speech and associational rights;
5 they are not subject to strict scrutiny but rather to the more lenient, closely
6 drawn standard of review. In addition, the heightened evidentiary
7 requirement urged by Appellants does not apply.12
8 Citizens United confirms, yet again, that eliminating corruption or the
9 appearance thereof is a sufficiently important governmental interest to justify
10 the use of closely drawn restrictions on campaign contributions. This interest
12
The doing business limits differ from the generally applicable limits in degree, not in kind.
Appellants argue that the limits hinder candidates’ ability to amass contributions from business
interests, but that is the purpose of the law. Appellants make no argument that these provisions
pose unusual constraints on candidates’ fundraising or contributor’s associational rights. Whether
the contribution limits hinder the ability to amass contributions from business interests is not the
relevant test. Rather, the test is whether candidates have access to sufficient funds to run campaigns
where they can effectively engage with the electorate. The data indicate that the challenged
provisions actually have such a positive effect on fundraising ability. See CFB Analysis: Fundraising
Shows New Focus on Small Contributions During 2008 1, 2 (2008), available at
http://www.nyccfb.info/press/news/press_releases/2008-07-24.pdf (finding that “candidates for City
office in the 2009 elections are raising funds at an unprecedented rate” and that “small contributors
are starting to play a greater role in City campaigns”). Appellants also fail in their attempt to fit this
case into Davis v. Federal Election Commission, which rejected different expenditure limits for
different candidates, not donation limits for different contributors. Davis, 554 U.S. at 737-38. Even
if this particular doing business limit may be called novel, as Appellants argue, the justification for
it–to reduce the appearance of corruption–is not. Restrictions on contractor contributions are not
uncommon and the notion that money and governmental favors are connected is far from
implausible. See, e.g., N.Y. Elec. L. 14-114(9) (limiting contributions to candidates for and members
of the New York City Board of Estimate by persons with a matter pending before the Board six
months before and twelve months after) (repealed by 1997 Sess. L. News of N.Y. Ch. 128 (A. 7887)
upon abolition of the Board of Estimate); Green Party, 616 F.3d 189; Blount v. S.E.C.,
61 F.3d 938
(D.C. Cir. 1995); Fed. Election Comm’n v. Weinstein,
462 F. Supp. 243 (S.D.N.Y. 1978). Under
Shrink Missouri, therefore, the quantum of empirical evidence needed is not particularly high.
22
1 exists even where there is no actual corruption, because the perception of
2 corruption, or of opportunities for corruption, threatens the public’s faith in
3 democracy. See Fed. Election Comm. v. Colo. Republicans, 533 U.S. 431, 440-
4 41 (2001);
Buckley, 424 U.S. at 24. In fact, as noted in Green Party, while a
5 limit may be sufficient to address actual corruption, the appearance and
6 public perception of corruption may be so grave as to merit a ban.
7 Although Citizens United stated that mere influence or access to
8 elected officials is insufficient to justify a ban on independent corporate
9 expenditures, improper or undue influence presumably still qualifies as a
10 form of corruption.13 See
Bennett, 131 S. Ct. at 2827 (discussing the “'interest
11 in alleviating the corrupting influence of large contributions'” served by
12 contribution limits (emphasis added) (quoting
Buckley, 424 U.S. at 55)); Colo.
13
Republicans, 533 U.S. at 440-41 (“[L]imits on contributions are more clearly
14 justified by a link to political corruption than limits on other kinds of
15 unlimited political spending are (corruption being understood not only as quid
16 pro quo agreements, but also as undue influence on an officeholder's
13
In any event, the Supreme Court’s reservation about preventing mere influence as a
justification is limited to independent expenditures. Citizens United, 130 S. Ct. at 910. The Court
asserted that the appearance of influence in that context will not cause the electorate to lose faith
because, by definition, independent expenditures are intended to appeal directly to these voters,
reinforcing the paramountcy of their (as opposed to the source of funds’) influence in the process. Id.
Whatever may be said about this explanation, it clearly does not apply to contribution limits, which
directly benefit the candidate and only indirectly persuade the voters.
23
1 judgment, and the appearance of such influence).” (citations omitted)
2 (emphasis added)); Republican Nat’l Comm. v. Fed. Election Comm’n, 698 F.
3 Supp. 2d 150, 158-60 (D.D.C. 2010). Improper or undue influences includes
4 both traditional quid pro quo and more discreet exchanges of money for
5 favorable outcomes.14
6 While independent corporate campaign expenditures may influence a
7 candidate, or facilitate access that non-speakers may not enjoy, Citizens
8 United emphasized the right to speech and its independence from the
9 candidate. Direct giving to the candidate, or the candidate’s campaign
10 committee, stands on a different footing. Since neither candidate nor
11 contributor is likely to announce a quid pro quo, the appearance of corruption
12 has always been an accepted justification for a campaign contribution
13 limitations. See McCormick v. United States,
500 U.S. 257, 272-73 (1991)
14 (holding that an elected official’s receipt of a campaign contribution amounts
15 to extortion only when an official asserts that his official conduct will be
16 controlled by the terms of the promise or undertaking, but noting that the
17 implicit exchange of benefit for money “in a very real sense is unavoidable so
14
The distinction between mere influence or access, as addressed by Citizens United, and
improper influence or access goes to the very heart of representative democracy. It is one thing to
gain access to a legislator in order to influence him or her with a policy argument. Indeed, we
presume that legislators are influenced by the ideological views of their constituents. It is entirely
different to seek to influence a legislator with money in the hope of receiving a contract; such
influence is de facto improper and corrupting.
24
1 long as election campaigns are financed by private contributions or
2 expenditures”). In other words, because the scope of quid pro quo corruption
3 can never be reliably ascertained, the legislature may regulate certain
4 indicators of such corruption or its appearance, such as when donors make
5 large contributions because they have business with the City, hope to do
6 business with the City, or are expending money on behalf of others who do
7 business with the City.
8 Furthermore, such donations certainly feed the public perception of
9 quid pro quo corruption, and this alone justifies limitations or perhaps an
10 outright ban. 130 S. Ct. at 908, 910. When those who do business with the
11 government or lobby for various interests give disproportionately large
12 contributions to incumbents, regardless of their ideological positions, it is no
13 wonder that the perception arises that the contributions are made with the
14 hope or expectation that the donors will receive contracts and other favors in
15 exchange for these contributions. The threat of quid pro quo corruption in
16 such cases is common sense and far from illusory. See, e.g., NCRL v. Bartlett,
17
168 F.3d 705 (4th Cir. 1999) (upholding prohibition on in-session lobbyist
18 contributions); Blount v. S.E.C.,
61 F.3d 938 (D.C. Cir. 1995) (upholding SEC
19 Rule that prohibits municipal securities brokers and dealers from engaging in
20 municipal securities business for two years after contributing more than $250
25
1 to state officials from whom they obtain business); cf. United States v.
2 Harriss, 347 U.S. 612 (1954) (dismissing a First Amendment challenge to a
3 lobbying disclosure act).
4 Indeed, the Supreme Court recently attributed the particular threat of
5 corruption posed by campaign contributions to the risk of mixing money and
6 politics.
Bennett, 131 S. Ct. at 2826 (observing that “'the use of personal
7 funds reduces the candidate's dependence on outside contributions and
8 thereby counteracts the coercive pressures and attendant risks of abuse' of
9 money in politics” (quoting
Buckley, 424 U.S. at 53)). Doing business
10 contributions mix money and politics on both ends of the equation, making
11 them that much more risky and questionable. Contributions to candidates for
12 City office from persons with a particularly direct financial interest in these
13 officials' policy decisions pose a heightened risk of actual and apparent
14 corruption, and merit heightened government regulation. Mere access or
15 influence based on independent corporate speech, therefore, is not the concern
16 here. This is so even though the record occasionally also speaks to the
17 presence of mere “influence.”
18 Appellants argue that Green Party requires evidence of recent scandals
19 in order to justify any contribution restriction, not just a ban. (See Letter of
20 July 14, 2010). This is not what Green Party says. There is no reason to
26
1 require the legislature to experience the very problem it fears before taking
2 appropriate prophylactic measures. See Citizens United, 189 S. Ct. at 908
3 (noting the preventative nature of contribution limits because the scope of
4 quid pro quo corruption “‘can never be reliably ascertained’” and those
5 instances that are known are covered by bribery laws (quoting Buckley,
424
6 U.S. at 27)); see also Anthony W. Crowell, New Lobbying Laws: More
7 Sunlight, More Teeth, 12 CityLaw 73, 73 (July/Aug. 2006) (noting that recent
8 Washington scandals involving lobbyist Jack Abramoff, former
9 Representative Randy Cunningham, and Representative William Jefferson
10 “illustrate the potential for corrupt lobbying to erode citizens’ faith in their
11 government” and that New York City enacted reforms, including making
12 lobbyist contributions ineligible for matching with public funds, to enhance
13 integrity and transparency in municipal government, “[r]ather than waiting
14 for New York City to see its own lobbyist scandals”). Appellants essentially
15 propose giving every corruptor at least one chance to corrupt before anything
16 can be done, but this dog is not entitled to a bite. Green Party only
17 considered whether an outright contribution ban was closely drawn to the
18 anti-corruption interest. As to limits, Green Party set the justificatory
19 burden somewhere between a concrete showing of actual quid pro quo
27
1 corruption and the sort of “mere conjecture” that the Supreme Court has
2 deemed out of bounds. Shrink Missouri, 528 U.S. at 379.
3 Indeed, as the district court reasoned,
Ognibene, 599 F. Supp. 2d at 448
4 n.12, to require evidence of actual scandals for contribution limits would
5 conflate the interest in preventing actual corruption with the separate
6 interest in preventing apparent corruption. In other words, if every case of
7 apparent corruption required a showing of actual corruption, then the former
8 would simply be a subset of the latter, and the prevention of actual corruption
9 would be the only legitimate state interest for contribution limits. Green
10 Party is consistent with Supreme Court precedent rejecting this argument,
11 due to the difficulty of detecting actual corruption and the equal importance
12 of eliminating apparent corruption. See
McConnell, 540 U.S. at 153; Buckley,
13 424 U.S. at 27.
14 Appellants do not dispute that the generally applicable contribution
15 limits responded to actual pay-to-play scandals in New York City in the
16 1980's. (Appellant Br. 4-5.) Rather, they argue that these initial limits have
17 been successful, so that lower limits are unnecessary. This determination,
18 however, is a matter of policy better suited for the legislature, which has
19 institutional expertise in the field of election regulation and effectively curbed
20 these scandals in the first place. See, e.g.,
Randall, 548 U.S. at 248 (“[W]e
28
1 have no scalpel to probe each possible contribution level. We cannot
2 determine with any degree of exactitude the precise restriction necessary to
3 carry out the statute's legitimate objectives. In practice, the legislature is
4 better equipped to make such empirical judgments, as legislators have
5 particular expertise in matters related to the costs and nature of running for
6 office. Thus ordinarily we have deferred to the legislature's determination of
7 such matters.” (internal citations and quotations omitted)); Fed. Election
8 Comm’n v. Nat’l Conservative Political Action Comm., 470 U.S. 480, 500
9 (1985) (noting Buckley's “deference to a congressional determination of the
10 need for a prophylactic rule where the evil of potential corruption had long
11 been recognized”); Fed. Election Comm’n v. Nat’l Right to Work Comm., 459
12 U.S. 197, 210 (1982). There is no doubt that the threat of corruption or its
13 appearance is heightened when contributors have business dealings with the
14 City, for the reasons just discussed. Accordingly, it is reasonable and
15 appropriate to further limit their contributions.
16 In addition, it is clear that the City Council properly studied this issue
17 before concluding that doing business contributions are particularly
18 problematic and merit special treatment. The record contains several reports
19 and investigations–including the 1998 Commission Report, the 2005 Election
20 Report, the 2006 interim report of a study conducted by students at New York
29
1 University’s Wagner Graduate School of Public Service, and the Committee
2 on Governmental Operations’ Reports on the challenged laws–all of which
3 attest to the significant role that “doing business” contributions play in
4 elections and in the public perception of corruption. For example, “doing
5 business” contributors were more likely to give large rather than small
6 donations, and disproportionately contributed to incumbents–who are
7 considered to have greater influence on city decisions–than to challengers.
8 2005 Election Report, 122; see also Pines Decl., Ex. II, Deposition of Martin
9 Malave Dilan at 33-34 (testifying that contributors who do business with the
10 City favor incumbent candidates); Pines Decl., Ex. NN, Deposition of Marlene
11 J. Tapper at 63 (same); Pines Decl., Ex. OO, Deposition of Viviana Vazquez-
12 Hernandez at 44 (same). In 2001 and 2005 respectively, donors with business
13 dealings were 3.8% and 5.3% of all contributors, but accounted for 25.2% and
14 21.5% of dollars contributed. Based on this evidence, it was entirely
15 appropriate for the Council to find that there is an appearance that larger
16 contributions are made to secure the contract, land use approval, or whatever
17 municipal benefit is at issue.
30
1 Moreover, there is direct evidence of a public perception of corruption.15
2 While Appellants pretend to be skeptical, their assertions are not credible.
3 Not only is the connection between money and municipal action objectively
4 reasonable, but their own deposition testimony confirms that the public
5 perceives this connection to exist. See, e.g., Pines Decl., Ex. II, Deposition of
6 Martin Malave Dilan at 33-34; Pines Decl., Ex. JJ, Deposition of Thomas V.
7 Ognibene at 31-32; Pines Decl., Ex. LL, Deposition of Fran Reiter at 52; Pines
15
Although Green Party does not require actual incidents of corruption to sustain
contribution limits (as opposed to bans), 616 F.3d at 207 & n.15, it is no wonder there is a public
perception of corruption, given the recent scandals involving exchanges of money for favors. See, e.g.,
Nicholas Confessore & Danny Hakim, Bruno is Guilty of Corruption in Federal Case, N.Y. Times,
Dec. 8, 2009, at A1; Kareem Fahim, Seeking Free Home, Ex-Legislator Will Get a Prison Cell
Instead, N.Y. Times (June 13, 2008), available at
http://www.nytimes.com/2008/06/13/nyregion/13gordon.html; John Kifner, Velella, Bronx
Powerhouse, is Sentenced to a Year in Jail, N.Y. Times, June 22, 2004, at B10; Colin Moynihan, State
Senator and 7 Others Plead Not Guilty to Corruption, N.Y. Times, Apr. 12, 2011, at A22; Stacey
Stowe, Rowland Home After Serving 10 Months in Corruption Case, N.Y. Times (Feb. 14, 2006),
available at http://www.nytimes.com/2006/02/14/nyregion/14rowland.html?ref=johngrowland. No
great logical leap is necessary to infer that opportunities for further, campaign-related corruption
should be minimized. Moreover, several recent scandals have specifically involved pay-to-play
campaign donations. See, e.g., Danny Hakim & William K. Rashbaum, Hevesi Pleads Guilty in
Pension Case, N.Y. Times, Oct. 7, 2010 (reporting on former New York State Comptroller’s approval
of a pension investment in exchange for, inter alia, $500,000 in campaign contributions); Tom
Precious, Scandal Over Downstate Casino Jolts Albany, Buffalo News, Oct. 22, 2010; see also
Nicholas Confessore, Albany Inquiry Ends in Penalty for a Lobbyist, N.Y. Times, Dec. 8, 2010,
available at http://www.nytimes.com/2010/12/09/nyregion/09lobby.html (implicating a lobbyist in the
same Comptroller’s pay-to-play scheme).
All of these incidents occurred in the New York State area. While none implicates an elected
New York City official, the public is not as parsing as Appellants would hope. The City Council need
not wait for this outbreak to infect its own members, so that the public may specifically lose faith in
that legislative body, as well. Ranging from before 2006–when the first of the challenged laws
passed–to the present, these scandals have created a climate of distrust that feeds the already-
established public perception of corruption. Appellants argue that the City may, in defending the
law, rely only on those scandals that predate it. To consider only the scandals that predate the law
would lead to an absurd result in cases, unlike this one, where a history of actual corruption is
required (e.g., a ban): If the law were struck down as a result, the Council could immediately pass the
exact same law, citing the exact same scandals which now would be prior to the passage of the law,
and that law would be upheld.
31
1 Decl., Ex. NN, Deposition of Marlene J. Tapper at 63; Pines Decl., Ex. OO,
2 Deposition of Viviana Vazquez-Hernandez at 43-44. Appellant Tom Ognibene
3 acknowledges the usual public perception of office holders and candidates for
4 office: “You’re all a bunch of crooks.” (Pines Decl., Ex. JJ, Deposition of
5 Thomas V. Ognibene at 32). The fact that City voters passed the referendum
6 approving these reforms speaks powerfully to the public perception that
7 further regulation of campaign contributions by those who do business with
8 the City is needed.16 See Shrink Missouri, 528 U.S. at 393-94 (“And although
9 majority votes do not, as such, defeat First Amendment protections, the
10 statewide vote on Proposition A certainly attested to the perception relied
11 upon here . . . .”). In these circumstances, where people believe that many
12 public officials are corrupt, and there is substantial and material evidence to
13 support that belief, clearly the public may enact preventative measures to
14 address the contaminating belief that everything is for sale and to restore
15 faith in the integrity of the political process.
16
Appellants argue that the question posed in the 1998 Referendum–whether “requiring
disclosure and regulation of contributions by those doing business with the City of New York should
be adopted”–was misleadingly worded because it implies that such contributions were not already
regulated. The plain inference to be drawn from this question, however, is whether such
contributions should be further regulated and separately disclosed, not simply as a contribution but
as a contribution from one who does business with the City. Indeed, this question was well-crafted to
pinpoint the propriety of “doing business” as a measure of potential corruption.
32
1 Appellants assert several rationales for why these provisions are not
2 closely drawn. First, they assert that they are overbroad because they ban
3 legitimate as well as corrupt acts. Buckley expressly rejected a similar
4 argument because “[n]ot only is it difficult to isolate suspect contributions,
5 but more importantly, Congress was justified in concluding that the interest
6 in safeguarding against the appearance of impropriety requires that the
7 opportunity for abuse inherent in the process of raising large monetary
8 contributions be eliminated.” 424 U.S. at 29-30, 27-28 (also noting that “laws
9 making criminal the giving and taking of bribes deal with only the most
10 blatant and specific attempts of those with money to influence governmental
11 action”); see also Ward v. Rock Against Racism,
491 U.S. 781, 798 (1989)
12 (holding that a regulation of protected speech may be narrowly tailored even
13 if it is not the least restrictive or least intrusive means). These provisions
14 aim at eliminating, not only corrupt acts, but the appearance of corruption.
15 They are not overbroad. Rather, the limits are tailored to apply only to those
16 who seek a benefit from the City; and, even then, only to those business
17 dealings more likely linked to corruption (i.e., high value business
18 transactions, and lobbyists, whose sole purpose is to influence City outcomes).
19 Appellants also argue that these restrictions are underinclusive
20 because they do not apply to all contributors with the influence and incentive
33
1 to engage in pay-to-play, specifically labor organizations and neighborhood
2 associations that do not have procurement contracts which qualify as
3 business dealings (e.g., the Little League that wants a park to play its
4 baseball games, contending with a soccer league that wants the same park at
5 the same time). A statute is not, however, “invalid under the Constitution
6 because it might have gone farther than it did.” Buckley, 424 U.S. at 105; see
7 also
Blount, 61 F.3d at 946 (“Because the primary purpose of
8 underinclusiveness analysis is simply to ensure that the proffered state
9 interest actually underlies the law, a rule is struck for underinclusiveness
10 only if it cannot fairly be said to advance any genuinely substantial
11 governmental interest” (internal quotations and citations omitted)). The fact
12 that the City has chosen to focus on one aspect of quid pro quo corruption,
13 rather than every conceivable instance, does not render its rationale a
14 “challenge to the credulous.” Republican Party of Minnesota v. White, 536
15 U.S. 765, 778 (2002). The limits decided upon are not unreasonable and
16 appear to be based on common sense. They focus on misconduct that flows
17 from business dealings with the City and include labor organizations and
18 neighborhood associations that do business with the City.17 In the 2001 and
17
Furthermore, labor unions are different. Unlike contractors, they are the statutory
representatives of a group of municipal employees and, as such, are allowed under State law to
bargain collectively and to obtain contracts. If it cannot negotiate a contract, one will be imposed by
34
1 2005 election cycles, groups defined as “doing business” with the City gave a
2 total of about $25 million to citywide candidates while unions and labor-
3 related PACs gave only about $4.1 million or sixteen percent of that total.
4 (LaRue Decl. Ex. E, New York Times, New Campaign Finance Rules Skip
5 Unions, June, 28, 2007.) Accordingly, the City Council’s choice of definition
6 for “business dealings” effectively captures the biggest contributors. The
7 provisions are not, therefore, underinclusive of their stated purpose.
8 Appellants additionally contend that these provisions are overinclusive
9 because they may be applied using the broader definition of “lobbyist.”
10 Appellees concede, however, that the narrower definition applies. (Appellee’s
11 Br. 11 n.5). This narrower definition comports with, and is no broader than
12 necessary to address, the interest in eliminating actual and perceived
13 corruption. Appellants acknowledge that the public perceives lobbyists as
14 influencing or attempting to influence elected officials through their
15 campaign contributions. (See Pines Decl., Ex. LL, Deposition of Fran Reiter
16 at 52; Pines Decl., Ex. NN, Deposition of Viviana Vazquez-Hernandez at 44.)
17 Accordingly, the inclusion of people and organizations engaged in lobbying
18 activities does not render these provisions overinclusive.
an impasse panel. To the extent that they do business in the sense that others do, they are included
in the lower limits.
35
1 Appellants further assert that these provisions are poorly tailored
2 because they are not indexed for inflation and discriminate based on
3 viewpoint. The mere failure to index for inflation, however, does not compel a
4 finding that the provisions are not closely drawn. Randall pointed to the
5 failure to index for inflation as only one of five factors which, taken together,
6 led to its conclusion that certain contribution limits violated the First
7 Amendment. See 548 U.S. at 253-263 (also weighing the fact that the limits
8 applied to contributions by political parties and included volunteers’
9 expenses). But the real problem in Randall was that the limits were so low
10 that a candidate could not communicate meaningfully with constituents. But
11 limits challenged here apply only to certain contributions and for citywide
12 elections; and they are not as “suspiciously low” as those in Randall.
Id. at
13 261; see also Green
Party, 616 F.3d at 205 (noting that a limit of $50 per
14 election would effectively address the problem of actual corruption without
15 “wholly extinguish[ing] a contractor’s actual associational rights”).
16 Appellants do not provide any evidence that the reduced dollar amount which
17 can be contributed prevents the running of a competitive campaign.
18 Furthermore, Randall was concerned that such low limits would “magnify the
19 advantages of incumbency to the point where they put challengers to a
20 significant
disadvantage.” 548 U.S. at 248. The doing business limits here,
36
1 however, have the opposite effect; they seek to avoid stacking the deck in
2 favor of incumbents, to whom donors with business dealings
3 disproportionately contribute.
4 Viewpoint discrimination is a subset of content discrimination in which
5 the government impermissibly targets, not the subject matter itself, but
6 rather particular views taken on the subject. See Rosenberger v. Rector &
7 Visitors of Univ. of Va., 515 U.S. 819, 829, 831 (1995); Make the Road by
8 Walking, Inc. v. Turner,
378 F.3d 133, 150 (2d Cir. 2004). Appellants argue
9 that the challenged provisions discriminate based on viewpoint because
10 neighborhood, community, and labor organizations, which are not necessarily
11 subject to the doing business limitations, share a significantly different
12 viewpoint than do business owners and members of management. Appellants
13 have failed, however, to offer any evidence that these organizations share a
14 single viewpoint.18 While a neighborhood association may have a different
15 mission than a construction business, their interests may be precisely aligned
16 on a particular project. It also does not follow that all neighborhood
17 associations are monolithic. What flies in Bedford-Stuyvesant may not work
18 in Harlem, and what works on Park Avenue may not work on the Bronx
18
We do not consider Mr. Ognibene’s unsupported estimation that ninety-nine percent of
union contributions go to Democratic candidates to be sufficient evidence of viewpoint discrimination.
(See Pines Decl. Ex. JJ, at 12.)
37
1 Champs-Elysees–the Grand Concourse. Since Appellants do not specify what
2 these viewpoints are, it is difficult to say what is being excluded. But the
3 experience in New York dictates the conclusion that neighborhood,
4 community, and labor organizations do not share a single viewpoint. Nor do
5 business owners.19
6 D. Non-Matching Provisions
7 Sections 3-702(3) and 3-703(1-a) exclude contributions from individuals
8 subject to the lower doing business limits, including lobbyists, as well as
9 contributions from any other person required to be included in a lobbyists’
10 statement of registration from the matching provisions of the public financing
11 scheme. Non-matching does not prevent someone from making a
12 contribution, but it does minimize the value of that contribution. In this
13 respect, it is similar to a limit and subject to the less stringent standard of
14 review. For the reasons discussed, the non-matching provision is closely
15 drawn to address a sufficiently important governmental interest.
16 The public financing scheme generously matches eligible contributions
17 of up to $175 using tax dollars at the rate of 6 to 1. The program encourages
18 small, individual contributions, and is consistent with Randall’s interest in
19
Appellants’ facial Fourteenth Amendment challenge that the provisions effect
impermissible viewpoint discrimination fails for the same reason.
38
1 discouraging the entrenchment of incumbent candidates. See Randall, 548
2 U.S. at 248;
Crowell, supra, at 77 (noting the public financing scheme’s
3 “purpose of encouraging grassroots fundraising and diminishing the influence
4 of special interests”). When participation is voluntary and public money is
5 used, stricter restrictions may be imposed, perhaps even restrictions that
6 would normally be impermissible. See
Davis, 554 U.S. at 739-40. Candidates
7 who choose not to participate, and their contributors, are not prevented from
8 freely expressing their political speech and associations; the legislature has
9 merely decided not to amplify their contributions with tax dollars. That
10 decision is entirely permissible. Buckley held that Congress “may engage in
11 public financing of election campaigns and may condition acceptance of public
12 funds on an agreement by the candidate to abide by specified expenditure
13
limitations.” 424 U.S. at 57 n.65; see
Bennett, 131 S. Ct. at 2828. As in
14 Buckley, “by forgoing public financing, . . . [the candidates here] retain the
15 unfettered right” to receive contributions within the limits from lobbyists,
16 persons associated with lobbyists, and other individuals with business
17 dealings with the City.
Davis, 554 U.S. at 739.
18 The matching provision at issue here is clearly distinguishable. First,
19 it applies to contribution limits, which the Supreme Court has recognized to
20 be less onerous restrictions on speech than campaign expenditure limits.
39
1 Second, while the matching provisions here may burden the candidates who
2 choose to participate in the public financing scheme, the provision in Bennett
3 substantially burdened nonparticipating candidates, effectively forcing them
4 to put money in their opponent's campaign coffers. Id. at 2819. Third, unlike
5 the provisions challenged in Bennett and Davis, New York City's scheme does
6 not impose different limits on different candidates.
Davis, 554 U.S. at 738
7 (“We have never upheld the constitutionality of a law that imposes different
8 contribution limits for candidates who are competing against each other.”)
9 Certain contributors—those with direct financial stakes in the elected
10 candidate's decisions—are treated differently, see infra Part III.D; but the
11 way in which these contributors are treated differently is the same for all
12 candidates.
13 Additionally, the use of the broader definition of lobbyist for non-
14 matching purposes does not render it overinclusive. Insofar as the provision
15 reaches some contributors peripheral to the business dealings, such as a
16 lobbyist’s secretary or spouse, it does so only to prevent circumvention and
17 does not form “a substantial portion of the burden on speech.” Turner
18 Broadcasting System, Inc. v. F.C.C.,
512 U.S. 622, 682 (1994) (quoting Ward,
19 491 U.S. at 798); Interim Report, at 30 (providing examples of how “a
20 contribution through a spouse with the same last name is one potential way
40
1 to circumvent donation limits while guaranteeing the contribution is
2 associated with the family name”). Otherwise, lobbyists will continue to do
3 what they are doing now–giving money.20 Indeed, use of the broader
4 definition for non-matching purposes combats circumvention, while use of the
5 narrower definition of lobbyist for the lower contribution limits avoids
6 infringing the speech of people not actually engaged in lobbying activities.
7 This distinction is an appropriate balancing of these competing concerns.
8 E. Entity Ban
9 The Supreme Court has held that “the degree of scrutiny turns on the
10 nature of the activity regulated,” not on the fact that contributions are
11 outright banned, as opposed to just limited. Beaumont, 539 U.S. at 161-62.
12 Accordingly, the more lenient standard of review also applies to the entity
13 ban. On the other hand, the analysis of whether a restriction imposes a ban
14 or merely a limit is relevant to the closely drawn analysis. See Green Party,
15 319 F.3d at 206-07.
20
For example, a plaintiff in this proceeding, who is the spouse of a lobbyist, testified that she had no
knowledge of a contribution made jointly on her and her husband’s behalf to a candidate who is unknown to her.
See Pines Decl., Ex. GG, Deposition of Sheila Andersen-Ricci at 8 (“Q: Have you ever made [or directed anyone to
make] any contributions to any candidates for political office in your lifetime? A: No.”), 32-33 (“Q: To the best of
your understanding who is Thomas White? A: I don’t know.); Horowitz Decl. ¶ 4 (discussing a check drawn on the
account of Ms. Andersen-Ricci and her husband, payable to “Friends of Tom White, Jr.,” in the amount of
$500–twice the limit for a single contribution).
41
1 Beaumont recognized four justifications for the federal ban on corporate
2 contributions: (1) the anti-corruption interest already discussed, 539 U.S. at
3 154; (2) the anti-distortion interest, stemming from the “special
4 characteristics of the corporate structure that threaten the integrity of the
5 political process . . . [by] permit[ting] them to use resources amassed in the
6 economic marketplace to obtain an unfair advantage in the political
7 marketplace,”
id. at 153-54 (internal quotations omitted); (3) the dissenting-
8 shareholder interest in protecting individuals’ investments in the corporation
9 from being used to support political candidates these individuals might
10 oppose,
id. at 154; and (4) the anti-circumvention interest in preventing the
11 evasion of valid contribution limits.
Id. at 155. Since the anti-corruption and
12 anti-circumvention interests adequately justify the entity ban, we do not
13 consider the extent to which the other rationales may apply.21
21
Citizens United preserves the anti-corruption justification for regulating corporate
contributions, based on its clear distinction between expenditures and contributions, and the lack of
an express rejection of the corporate ban, which has existed since the first federal campaign finance
law in 1907. 1998 Commission Report, 16. The Court is aware of United States v. Danielczyk, No.
1:11cr85 (JCC), 2011 WL 2161794 (E.D. Va. May 26, 2011), which struck down a ban on corporate
contributions, based on what it called an “inescapable” expansion of Citizen United’s logic. Id. at *18;
Danielczyk,
2011 WL 2268063 (E.D. Va. June 7, 2011) (denying reconsideration). The role of an
appellate court is to apply to law as it exists. Since the Supreme Court reaffirmed the validity of the
100-year old corporate ban just 8 years ago, Beaumont, 539 U.S. at 154-55, and declined to overrule
this holding in Citizens United, this Court will not do so here. Indeed, Citizens United confirms that
the anti-corruption interest is a legitimate justification for campaign contribution restrictions.
Citizens United also does not disturb the validity of the anti-circumvention interest. See
Thalheimer v. City of San Diego, Nos. 10-55322, 10-55324, 10-55434, 2011 WL 2400779, at *13 (9th
Cir. Jun. 9, 2011) (concluding that “nothing in the explicit holdings or broad reasoning” of Citizens
United invalidates the anti-circumvention interest in the context of contribution limits); Minn.
Citizens Concerned for Life, Inc. v. Swanson, 640 F.3d 304, 318 (8th Cir. 2011), vacated on July 12,
42
1 The anti-corruption rationale presents a sufficiently important
2 governmental interest for the reasons already discussed, and applies equally
3 to LLCs, LLPs, and partnerships, as to corporations. In addition, the
4 organizational form of an LLC, LLP, and partnership, like a corporation,
5 creates the opportunity for an individual donor to circumvent valid
6 contribution limits.22 See Beaumont, 539 U.S. at 155, 157 (noting that
7 National Right to Work,
459 U.S. 197 rejected the argument that the
8 rationale for the corporate contribution ban “turns on the details of the
9 corporate form,” as opposed to similar organizational structures); Colo.
10
Republicans, 533 U.S. at 456 & n.18, 457 (noting that “contribution limits
11 would be eroded if inducement to circumvent them were enhanced”).
12 The record contains sufficient evidence from which one could infer
13 circumvention and perceive corruption. For example, these entities have
14 become more active contributors since the corporate ban; LLC contributions
15 more than doubled from 2.8% in the 2001 election to 6.2% in the 2005
2011 for rehearing en banc (“Citizens United never doubted the government's strong interest in
preventing quid pro quo corruption or materially questioned the ability of corporations to serve as
conduits for circumventing valid contributions limits.”). As a result, the Court need not consider the
extent to which the entity ban could have been justified by the anti-distortion and dissenting-
shareholder rationales, which Citizens United rejected with respect to independent corporate
expenditures.
22
Since the entity ban is justified both by anti-corruption and anti-circumvention interests,
and simply extends the already-existing corporate ban to other functionally similar entities, Green
Party’s requirement of a recent history of actual corruption does not apply.
43
1 election.23 2005 Election Report, at 121. Most compelling is the
2 overwhelming percentage of contributions from such entities for incumbent
3 candidates.24 While the rise in contribution activity could be attributed to
4 innocent causes, the grossly disproportionate support for candidates based
5 not on ideology or voting record, but rather on their relative position of power
6 and ability to return favors, creates the appearance of impropriety.
7 Entity contributions also undermine the CFA’s goal of transparency,
8 because they only have to be attributed to the partner or owner when they
9 exceed $2,500. Committee Report, 29. Transparency is a particular problem
10 for LLCs because many are involved in city business, especially land use, yet
11 there are minimal disclosure requirements and often no publicly available
12 information about the owners.25 See 2005 Election Report, at 121; see also
23
Following the ban on corporate contributions, organizational contributions rose from
thirteen percent in 2001 to sixteen percent in 2005. 2005 Election Report, at 121.
24
In the 2005 election, the average incumbent collected seventy-eight contributions from
organizations, totaling $43,500, whereas challengers averaged only two contributions, totaling
$1,800. Id. at 120.
25
New York State Senator Daniel Squadron stated that the LLC loophole effectively means
that “you don’t have contribution limits.” Gearty & Lesser, supra. The following examples
demonstrate how easily campaign contribution can be bundled to circumvent limits: (1) a real estate
developer, his wife, and two executives from his LLC all gave maximum contribution to the same
incumbent candidate for City Council, see Interim Report, at 32-33; (2) the same developer, his
immediate family, his LLC, and officers of his LLC contributed nearly $100,000 in the 2001 and 2005
City election cycles, id. at 32; (3) two real estate developers and their newly-formed LLC gave nearly
ten times the amount of donations they had given in the past after initiating a particular project, id.
at 35; (4) the owner of a parent company of the construction company that received a contract to build
a major transportation hub in Manhattan, his children, and the owner of the parent company’s
marketing firm all gave significant contributions to an incumbent candidate for Borough President.
See generally Doing Business Portal, http://www.nyc.gov/html/doingbiz/home.html (last visited Aug,
10, 2011). The lack of disclosure requirements for LLCs makes it especially difficult to track the
extent of bundling that occurs.
44
1 Robert Gearty & Benjamin Lesser, So-called 'LLCs' Enable Real Estate
2 Giants to Give Huge Sums to Gov. Paterson, AG Andrew Cuomo, N.Y. Daily
3 News (Feb. 15, 2010), available at http://articles.nydailynews.com/2010-02-
4 15/news/27056260_1_llc-money-limit-individual-donations-contributions
5 (citing examples of how contributors evade the contribution limits by
6 donating through LLCs—“the mother of all loopholes”—which are still
7 permitted in New York State).
8 The pressing question here is whether the entity ban is closely drawn.26
9 We hold that it is. The expansion of the corporate ban to include these
10 entities does not render it overinclusive because, as noted, the legal
11 distinctions between these entities and corporations do not make them less of
12 a threat of corruption or circumvention.
13 For the reasons that justify the corporate contribution prohibition,
14 therefore, the legislature permissibly determined that there is no room in
26
The Court rejects Appellants’ argument that the entity ban is underinclusive because it
does not apply to contributions from doctors, lawyers, and Certified Public Accountants. The LLC,
LLP, and partnership forms pose a risk of circumvention, not because of the nature of the profession
for which they are organized, but because they create the opportunity for the same individuals to
contribute up to the limits more than once–as an individual and again as an entity. Because
Appellants do not provide any connection between these professions and the risk of corruption, this
argument is unpersuasive. Moreover, their argument appears to be based on a misunderstanding of
§3-703(1)(l)’s statement that the mere fact that a contributor’s name is followed by a professional
designation such as “M.D.,” “Esq.,” or “C.P.A.,” does not cause the contribution to fall within the
entity ban. This does not mean that a contribution from an LLC, LLP, or partnership consisting of
doctors or lawyers would be exempt, but rather warns against the overapplication of the entity ban to
individuals who hold such professional titles.
45
1 City campaigns for entity contributions. While limits may minimize
2 circumvention and the appearance of corruption, the City is free to decide
3 that these evils must be eliminated to ensure the public’s faith in the
4 electorate system.
5 CONCLUSION
6 For the foregoing reasons, we AFFIRM the judgment of the district
7 court upholding the constitutionality of the contribution limits, non-matching
8 provision, and entity ban.
46
1 CALABRESI, J., concurring:
2 As Jesus looked up, he saw the rich putting their gifts into the temple treasury. He also saw a
3 poor widow put in two very small copper coins. “Truly I tell you,” he said, “this poor widow has
4 put in more than all the others. All these people gave their gifts out of their wealth; but she out of
5 her poverty put in all she had to live on.”
6
7 Luke 21:1-4.
8
9 I join the majority opinion because it properly describes and follows the current law of
10 campaign finance. But all is not well with this law, and I believe it appropriate to state in a
11 judicial opinion why I think this is so.
12 Judge Crotty has performed a careful analysis of corruption (actual and its appearance),
13 and only of corruption, as a ground for upholding the regulations at issue in this case.1 His is the
14 necessary analysis under Supreme Court case law. The High Court has told us that the First
15 Amendment protects the right to speak through the use of money, but that the existence of this
16 right does not prevent governments from enacting campaign finance regulations in furtherance of
17 their interest in limiting actual or apparent corruption. McConnell v. FEC, 540 U.S. 93, 143
18 (2003) (“Our cases have made clear that the prevention of corruption or its appearance
19 constitutes a sufficiently important interest to justify political contribution limits.”). At the same
20 time, the Court has rejected the idea that governments may, by campaign finance regulations,
21 pursue the separate interest in what it has rather derisively called “leveling the playing field.”
22 Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett,
131 S. Ct. 2806, 2825-26 (2011).
23 That is, under current Supreme Court doctrine, governments cannot defend campaign finance
24 regulations on the ground that such regulations take into account and respond to the different
1
Of course, the majority opinion also discusses the state’s “anticircumvention” interest in
connection with the entity ban, but that interest is largely derivative of the state’s
“anticorruption” interest.
1
1 capacities of the rich and the poor to speak through money; legislatures—the Court has
2 indicated—have no role to play with respect to that. It is with this position that I wish to take
3 issue here.2
4 I agree completely with the Supreme Court that the First Amendment protects each
5 person’s right to express political beliefs through money. Where I disagree with the Court is in
6 its repeated insistence that any recognition of the “level playing field” interest (elsewhere
7 referred to as the “antidistortion interest,” Citizens United v. FEC, 130 S. Ct. 876, 903 (2010)) is
8 inconsistent with this right. To the contrary, the antidistortion interest promotes this right in two
9 important ways. First, it prevents some speakers from drowning out the speech of others. And
10 second, it safeguards something of fundamental First Amendment importance—the ability to
11 have one’s protected expression indicate the intensity of one’s political beliefs. These values,
12 moreover, have not gone unrecognized in underlying First Amendment jurisprudence.
13 The first benefit of antidistortion measures is not difficult to see. If an external factor,
14 such as wealth, allows some individuals to communicate their political views too powerfully,
15 then persons who lack wealth may, for all intents and purposes, be excluded from the democratic
16 dialogue. In much the same way that anti-noise ordinances help to prevent megaphone users
17 from drowning out all others in the public square, contribution limits can serve to prevent the
18 wealthiest donors from rendering all other donors irrelevant—from, in effect, silencing them. For
19 an articulation of this concern—i.e., that, without regulation, the rich would be able to use their
20 wealth to overwhelm the voices of the poor—one need look no further than the Supreme Court’s
21 decision in Red Lion Broadcasting Co. v. FCC, where, in upholding the FCC’s “fairness
2
As the case before us involves contribution restrictions, I will speak primarily of such
restrictions here. But much of what I say applies with equal force to restrictions on independent
expenditures.
2
1 doctrine,” the High Court long ago explained that, without the rule in place, “station owners and
2 a few networks would have unfettered power to make time available only to the highest bidders”
3 and thereby broadcast only those bidders’ political views. Red Lion Broadcasting Co. v. FCC,
4 395 U.S. 367, 392 (1969); see also
id. at 387 (“Just as the Government may limit the use of
5 sound-amplifying equipment potentially so noisy that it drowns out civilized private speech, so
6 may the Government limit the use of broadcast equipment. The right of free speech of a
7 broadcaster, the user of a sound truck, or any other individual does not embrace a right to snuff
8 out the free speech of others.”).3 The same is true of contribution limits: Without restrictions on
9 the size of campaign contributions, the wealthy could flood the campaign coffers of their
10 preferred political candidates, rendering all other contributions negligible by comparison.
11 Contribution limits, like noise ordinances, still allow those who have the capacity a full
12 opportunity to make their speech widely heard—the wealthy remain able to express their views
3
The fact that the FCC no longer enforces the fairness doctrine is not relevant to the Court’s
constitutional analysis in Red Lion. Indeed, what it shows is that bodies other than courts
(administrative and legislative bodies) are perfectly capable of taking into account the facts and
circumstances that determine what kinds of speech restrictions are inappropriate, undesirable, or
even constitutionally problematic. Cf. Syracuse Peace Council v. FCC, 867 F.2d 654, 661 (D.C.
Cir. 1989) (upholding the FCC’s determination that the fairness doctrine no longer served the
public interest, and noting, inter alia, the FCC’s conclusions that the doctrine chilled “the
expression of unorthodox or ‘fringe’ views on controversial issues” and that the doctrine was no
longer needed in light of the “dramatic increase in broadcasting outlets since [the year of its
implementation]”). In contrast with the nuanced handling of the issues by the FCC as upheld by
the D.C. Circuit, courts acting on their own and indulging in undemocratic decisionmaking
create the danger not only of wrong solutions to difficult constitutional problems, but also of
rigid answers to questions that by their nature demand flexible, adaptive, and democratically
informed responses.
3
1 forcefully through money—but such limits make sure that this is done only in ways that leave
2 room for everyone else to do the same.4
3 The second benefit of antidistortion measures is perhaps more subtle, but of no less
4 importance: it relates to the ability of all persons, rich and poor, to express the intensity of their
5 feelings. In many circumstances, the intensity of a speaker’s expression tells us much about the
6 intensity of that speaker’s beliefs. Polite applause conveys less enthusiasm than a shouted
7 “Bravo!” Passing criticisms convey weaker disagreement than passionate harangues. And, of
8 course, the tone of a judicial opinion provides some indication of how bleakly a judge views a
9 certain area of the law. But where speech takes the form of a monetary expenditure, the link
10 between intensity of beliefs and intensity of expression, as measured by the amount contributed,
11 can too easily break down. This is a result of the unequal distribution of wealth, which makes the
12 amount of money an individual spends on behalf of a political cause an unreliable measure of the
13 intensity and depth of that individual’s support for the cause. “In other words, and crucially, a
14 large contribution by a person of great means may influence an election enormously, and yet
15 may represent a far lesser intensity of desire than a pittance given by a poor person.” Landell v.
16 Sorrell, 406 F.3d 159, 161 (2d Cir. 2005) (Calabresi, J., concurring in the denial of rehearing en
17 banc), rev’d sub nom. Randall v. Sorrell,
548 U.S. 230 (2006).
18 To return to the example of the megaphone in the public square, the problem with its
19 loudness is not just that it drowns out the voices of others, but also that it misrepresents, to an
20 outside observer, the relative intensity of the speaker’s views. That is, even if the megaphone
4
The same would be true of payments by the government that match or otherwise increase the
contributions of the poor; that is, rather than putting in noise ordinances, the government might
prefer to make megaphones widely available.
4
1 user cares little about the issue being discussed, his voice gets heard above all others, while the
2 voices (and intensity of feelings) of those who care passionately about the issue (and shout their
3 beliefs at the top of their lungs) seem small in comparison. The one speaker’s relative loudness—
4 along with the other speakers’ relative softness—obscures the depth of each speaker’s views,
5 thereby degrading the communicative value of everyone’s message.
6 The foregoing example may seem fanciful, but money is not. And there is perhaps no
7 greater a distortive influence on the intensity of expression than wealth differences. The wider
8 the economic disparities in a democratic society, the more difficult it becomes to convey, with
9 financial donations, the intensity of one’s political beliefs. People who care a little will, if they
10 are rich, still give a lot. People who care a lot must, if they are poor, give only a little. Jesus’s
11 comment about the rich donors and the poor widow says it all. Today, the amount of an
12 individual’s campaign contribution reflects the strength of that individual’s preferences far less
13 than it does the size of his wallet. In this sense, all political donations—by rich and poor alike—
14 lose a crucially important aspect of their communicative value when campaign funds are
15 unrestricted. And that is a problem of profound First Amendment significance.
16 It is no small irony, then, that in refusing to recognize the existence of a state interest in
17 “leveling the playing field”—an interest which prior Supreme Court precedents had suggested
18 was compelling, and certainly is at least legitimate—the Court purports to safeguard “the
19 ‘unfettered interchange of ideas.’” Bennett, 131 S. Ct. at 2826 (quoting Buckley v. Valeo, 424
20 U.S. 1, 14 (1976) (per curiam)). Far from standing in the way of this ideal, the antidistortion
21 interest is vital to its fulfillment. Left unregulated, the “distorting effects of immense
22 aggregations of wealth,” Austin v. Michigan Chamber of Commerce,
494 U.S. 652 (1990),
23 overruled by Citizens
United, 130 S. Ct. at 913, will garble the political debate, trumpeting
5
1 voices that would otherwise be muted and muting voices that would otherwise be trumpeted.
2 Profound wealth differences, in short, make it difficult for speakers to express (and listeners to
3 discern) the true depths of their feelings. And because wealth inequalities are inevitable, and
4 indeed, many would say are desirable in their creation of incentives, the only way to ensure a
5 truly “unfettered interchange of ideas”—an interchange, that is, where each voice is heard in
6 reasonable proportion to the intensity of the beliefs it expresses—is to give the government some
7 freedom to mitigate the fettering impact of these inequalities.5
8 Indeed, if the Court were correct that the level playing field interest does not provide an
9 appropriate reason for regulating campaign contributions, then it becomes difficult to see why
10 the First Amendment does not give individuals the right to pay other individuals to vote for
11 candidates in elections. Such a practice need not raise the specter of quid pro quo corruption; one
12 might still buy votes on behalf of one’s preferred candidate even if one could ask nothing from
13 the candidate in return. The critical problem with vote-buying is not corruption; it is rather that
14 allowing the practice would give the wealthiest individuals a huge effect over political elections,
15 making even their relatively minor preferences matter immensely and the possibly intense
16 preferences of the poor matter not much at all. This same concern, of course, explains why a
17 state has a valid interest in leveling the playing field with respect to campaign contributions. Yet,
18 curiously, the Supreme Court seems to accept the validity of vote-buying regulations without
5
Moreover, to the extent that campaign contributions cannot be regulated so as to leave them
free to reflect intensity of feeling, the pressure for greater economic equality will increase, and
this may be detrimental to those efficiencies that flow from an unequal distribution of wealth. Put
another way, if campaign finance doctrine fails to recognize the value of a level playing field in
the political realm, there may arise stronger pressures to create a more level playing field in the
economy as a whole. The effect of such pressures on incentives and on overall economic
wellbeing I leave to others to evaluate.
6
1 hesitation, cf. Brown v. Hartlage, 456 U.S. 45, 54-55 (1982), while it refuses to accept the
2 validity of the antidistortion interest.
3 I am not suggesting that expressing the intensity of one’s views is the only thing that
4 matters in campaign finance doctrine, or in election law more generally.6 Nor am I suggesting
5 that the playing field must be fully level. This is an area of law in which many considerations
6 come into play, some of which, such as the dangers of quid pro quo corruption, counsel in favor
7 of state regulation, while others, such as the dangers of incumbent entrenchment, counsel
8 against. What specific limitations are and are not appropriate is not for me to say or even to
9 suggest as a judge.7 They are not the kinds of things courts are suited to decide but instead
10 constitute matters as to which legislative judgment is crucial. What this in turn means is simply
11 stated: So long as the Supreme Court refuses to recognize the importance of the antidistortion
12 interest, and its connection to the ability to express the intensity of one’s feelings, the Court will
13 be ignoring a variable of critical constitutional importance and excluding the most important
14 players—democratically elected legislatures—from their proper role in regard to that variable.
6
If it were, we might expect the ballot to be structured so as to give maximum effect to
preference intensity, through such devices as “cumulative voting” or “single-transferrable
voting.” See Samuel Issacharoff, Pamela S. Karlan & Richard H. Pildes, The Law of Democracy:
Legal Structure of the Political Process 1137-75 (3d ed. 2007). Although some jurisdictions have
experimented with cumulative voting models, see id. at 1163-67, 1172-75, most still adhere to
the traditional model, in which each individual—regardless of the strength of her preferences—
may cast one (and only one) vote for one (and only one) candidate per electoral contest. The
infrequent use of these alternative voting systems does not, of course, demonstrate any lack of
importance to the expression of preference intensity. It suggests only that, in the context of
elections, the need to recognize this value is balanced against other considerations.
7
In my life as a scholar, I have proposed some solutions to this problem. See, e.g., Philip Bobbit
& Guido Calabresi, Tragic Choices 98-117 (1978) (discussing wealth-distribution-neutral
markets); Guido Calabresi, Inaugural Lecture of the Academic Year of the International
University College (IUC) of Torino: Merit Goods, the Commons, and Their Significance for
Justice, Efficiency, and Equality (May 19, 2011) (video available at
http://www.youtube.com/watch?v=iQnLakWMycM).
7
1 * * *
2 What is at stake here—what everyone knows is at stake here—is what was recognized
3 and expressed so directly, succinctly, and powerfully in the story of the widow’s mite. The
4 ability to express one’s feelings with all the intensity that one has—and to be heard—is a central
5 element of the right to speak freely. It is, I believe, something that is so fundamental that sooner
6 or later it is going to be recognized. Whether this will happen through a constitutional
7 amendment or through changes in Supreme Court doctrine, I do not know. But it will happen.
8 Rejection of it is as flawed as was the rejection of the concept of one-person-one-vote. And just
9 as constitutional law eventually came to embrace that concept, so too will it come to accept the
10 importance of the antidistortion interest in the law of campaign finance.
11 It is with that faith in a better future, along with an understanding of the requirements of
12 our flawed present, that I join the majority opinion.
8
Debra Ann Livingston, Circuit Judge, concurring in part and concurring in
the judgment:
I join in Parts I, II and III.A of the majority opinion. I write separately as
to Part III.B-E only to make clear my disagreement with the majority’s
conclusion that improper or undue influence is a form of corruption that may be
addressed with closely drawn contribution limits. To the extent that this
conclusion is one basis on which the majority upholds the special contribution
limits and non-matching provisions that New York City’s campaign finance law
imposes on those “doing business” with the City, I respectfully disagree with its
analysis.1 I nevertheless conclude that these provisions pass constitutional
muster pursuant to the Supreme Court’s and this Court’s precedents.
Accordingly, I concur in the judgment as expressed in Part III.B-E.
%%%
Since the enactment of its Campaign Finance Act (“CFA”) in 1988, New
York City has imposed limits on the amount of money that may be contributed
to a single candidate for public office in a given calendar year.2 These generally
applicable limits are $4,950 to each candidate running for mayor, public
advocate, or comptroller; $3,850 to each candidate running for borough
president; and $2,750 to each candidate running for city council. N.Y.C. Admin.
1
The majority relies principally on the Supreme Court’s decision in FEC v. Beaumont, 539 U.S. 146
(2003), to uphold the City’s ban on political contributions by partnerships, LLPs, and LLCs. To the
extent it also relies on its conclusion regarding undue influence in reaching this determination, however,
I similarly disagree.
2
The relevant provision phrases the limits as ceilings on the amount each candidate may accept from
a single contributor. N.Y.C. Admin. Code § 3-703(1)(f). The distinction is not material here.
Code §§ 3-703(1)(f), 3-703(7), 3-719(2)(b); Loprest Decl. ¶ 16. The appellants
here take no issue with these generally applicable limits, but rather with
subsequent limits enacted in 2007 and applicable only to individuals defined in
the CFA as “doing business” with the City of New York. For natural persons
who are classified as “doing business” with the City, significantly stricter limits
apply: $400 to candidates for mayor, public advocate, or comptroller; $320 to
candidates for borough president; and $250 to candidates for city council. N.Y.C.
Admin. Code §§ 3-703(1-a), 3-719(2)(b); Loprest Decl. ¶ 39.
“Doing business” contributors include, inter alia, individuals with specified
ownership or management roles in entities with valuable City contracts or
grants, or relations with the City that concern the acquisition or disposition of
real property.3 Lobbyists are also included within the stricter contribution
limits. N.Y.C. Admin. Code § 3-702(18)(a). Collective bargaining between the
City and municipal labor organizations, however, does not constitute “doing
3
The intricacies of the full statutory definition of “doing business” are not relevant here. Generally
speaking, however, “doing business” includes any relationship with the City or its affiliated agencies
involving: (1) contracts valued at $100,000 or more (except for emergency contracts or contracts procured
through competitive bidding), N.Y.C. Admin. Code §§ 3-702(18)(a)(i), 3-703(1-a), 6-116.2(i)(3)(a); (2) the
acquisition or disposition of real property, id. § 3-702(18)(a)(ii); (3) applications for approval for specified
transactions involving office space, land-use plans, or zoning changes,
id. § 3-702(18)(a)(iii); (4) certain
concessions and franchises greater than or equal to $100,000,
id. § 3-702(18)(a)(iv); (5) grants greater
than or equal to $100,000,
id. § 3-702(18)(a)(v); (6) economic development agreements,
id. § 3-
702(18)(a)(vi); and (7) contracts for investment of pension funds,
id. § 3-702(18)(a)(vii). The “doing
business” limits apply to “any chief executive officer, chief financial officer and/or chief operating officer
of [an entity that has business dealings with the City or an affiliated agency] or persons serving in an
equivalent capacity, any person employed in a senior managerial capacity regarding such entity, or any
person with an interest in such entity which exceeds ten percent of the entity.”
Id. § 3-702(20); see also
id. § 3-703(1-a). Generally speaking, an individual is considered to be “doing business” with the City at
the time he or she has actual or pending dealings with the City until a specified period after the
termination of dealings. N.Y.C. Admin. Code § 3-702(18)(b).
business.” Simpson Decl. ¶ 8. Moreover, the statutory text suggests that some
neighborhood and community organizations and their members are not subject
to the contribution limits even when these organizations engage in certain
activities that would otherwise qualify as “doing business” with the City.4
“Doing business” contributors are strictly limited in their contributions as
compared to others: they may donate only approximately one twelfth as much
to a candidate as those who are deemed not to be “doing business” with the City.
Because the “doing business” contribution limits, unlike the regular limits, are
not indexed for inflation, moreover, the disparity between these two sets of limits
is only likely to increase over time. Compare N.Y.C. Admin. Code §§ 3-703(1)(f),
3-703(7) with
id. § 3-703(1-a).
The City also operates a public campaign financing program in which
candidates for the various City offices specified above may choose to participate.
In this program, the City matches the campaign contributions of most
individuals to candidates who participate in the public funding program at a rate
of six to one (with up to $1,050 of public funds available for matching per
contributor per candidate). Id. § 3-705(2)(a); Loprest Decl. ¶ 11. Contributions
from lobbyists or other persons “doing business” with the City, however, are not
eligible for matching. 5 N.Y.C. Admin. Code §§ 3-702(3)(g)-
4
These activities involve zoning requests pursuant to N.Y.C. Charter §§ 197-c(a)(3) and 201. See N.Y.C.
Admin. Code §§ 3-702(18)(d), 3-702(20).
5
Contributions from a lobbyist’s spouse, domestic partner, and unemancipated children are also deemed
ineligible for matching.
Id. § 3-702(16). If the lobbyist is an organization, any officer or employee who
engages in lobbying or works for a division of the organization that engages in lobbying, as well as his
(h), 3-703(1-a); Loprest Decl. ¶ 12. Thus, an individual who does not fall into one
of these two categories is entitled, for example, both to contribute $4,950 to a
candidate for mayor and—if the candidate to whom the individual is making a
contribution is participating in the City’s public financing program and is
otherwise eligible to receive matching funds—to have that contribution
supplemented with $1,050 for a total contribution of $6,000. The “doing
business” contributor, in contrast, is limited to a contribution of $400 alone.
%%%
I agree with the majority that the “doing business” contribution limitations
in this case are subject to scrutiny for whether “they are closely drawn to serve
a sufficiently important interest.” Davis v. FEC, 554 U.S. 724, 737 (2008)
(internal quotation marks omitted); see Maj. Op. at 21. The Supreme Court has
repeatedly indicated that, while expenditure limitations are subject to strict
scrutiny, which requires courts to assess whether the challenged “restriction
‘furthers a compelling interest and is narrowly tailored to achieve that interest,’”
Citizens United v. FEC,
130 S. Ct. 876, 898 (2010) (quoting FEC v. Wis. Right to
Life, Inc.,
551 U.S. 449, 464 (2007) (opinion of Roberts, C.J.)), contribution limits
are subject to less searching scrutiny because campaign contributions “lie closer
to the edges than to the core of political expression.” FEC v. Beaumont,
539 U.S.
146, 161 (2003); see also Nixon v. Shrink Mo. Gov’t PAC,
528 U.S. 377, 387-88
or her spouse or domestic partner and unemancipated children, are excluded from the matching program.
Id.
(2000); Buckley v. Valeo,
424 U.S. 1, 25 (1976) (per curiam). At the same time,
with regard to contribution no less than expenditure limits, the First
Amendment “has its fullest and most urgent application precisely to the conduct
of campaigns for political office.”
Buckley, 424 U.S. at 15 (quoting Monitor
Patriot Co. v. Roy,
401 U.S. 265, 272 (1971)) (internal quotation mark omitted).
The scrutiny required by the First Amendment is thus both “exacting,” see
id.
at 16; Shrink
Mo., 528 U.S. at 386, and “rigorous,”
Buckley, 424 U.S. at 29.
I likewise agree that the non-matching provisions here are similarly
subject to “closely drawn” analysis. See Maj. Op. at 38. At least in the
circumstances in this case, matching funds given to a candidate as a result of a
contribution from a private donor are the functional equivalent of a contribution,
so that limits on such funds are functionally equivalent to contribution limits.
See FEC v. Colo. Republican Fed. Campaign Comm., 533 U.S. 431, 456 (2001)
(determining that “party coordinated spending [is] the functional equivalent of
contributions,”
id. at 447, and accordingly applying “scrutiny appropriate for a
contribution limit,”
id. at 456). Therefore, this Court must analyze both sets of
provisions to determine whether “they are closely drawn to serve a sufficiently
important interest.”
Davis, 554 U.S. at 737 (internal quotation marks omitted).
The City bears the burden of proof in this inquiry. Shrink
Mo., 528 U.S. at 387-
88.
%%%
I part ways with the majority, not in our shared conclusion as to the
constitutionality of the provisions here, but in determining what counts as a
“sufficiently important interest” in relation to which the provisions must be
judged. Pursuant to the Supreme Court’s decision in Buckley, preventing “the
actuality and appearance of corruption” is such an interest. Buckley, 424 U.S.
at 26. The majority, however, goes beyond Buckley in concluding that “improper
or undue influence . . . qualifies as a form of corruption” which may be combated
via closely drawn contribution limits. Maj. Op. at 22-23 (emphases omitted).
Because recent decisions by the Supreme Court and this Court clearly foreclose
this latter determination, I respectfully disagree with it.
In Citizens United, the Supreme Court unequivocally stated that when
Buckley identified the prevention of corruption or its appearance as “a
sufficiently important governmental interest” to render closely drawn
contribution limits acceptable under the First Amendment, “that interest was
limited to quid pro quo corruption.” 130 S. Ct. at 909 (emphasis added).6 The
Court recognized that favoritism and influence, unlike corruption, are
unavoidable in representative politics, in which a legitimate and substantial
6
Thus, contrary to the majority’s contention, see Maj. Op. at 23 n.13, the Court’s conclusion in Citizens
United cannot be confined to the context of expenditure limits, even though Citizens United itself
involved such limits,
see 130 S. Ct. at 908. Indeed, Buckley’s very determination that preventing quid
pro quo corruption and its appearance (but not real or perceived influence) may justify trenching on First
Amendment freedoms took place in the contribution, not expenditure, context. See
Buckley, 424 U.S. at
26-27; see also Citizens
United, 130 S. Ct. at 908 (“In Buckley, the Court found this interest [in preventing
corruption and its appearance] ‘sufficiently important’ to allow limits on contributions but did not extend
that reasoning to expenditure limits.”).
reason for casting a ballot or making a contribution “is that the candidate will
respond by producing those political outcomes the supporter favors.”
Id. at 910
(quoting McConnell v. FEC,
540 U.S. 93, 297 (2003) (Kennedy, J., concurring in
the judgment in part and dissenting in part), overruled in part on other grounds
by Citizens United,
130 S. Ct. 876). In a democracy premised on responsiveness,
the Court said, the mere fact “that speakers may have influence over or access
to elected officials does not mean that these officials are corrupt.”
Id. And
importantly, reliance on a generic influence theory to justify limiting political
speech is, itself, dangerous—“at odds with standard First Amendment analyses
because it is unbounded and susceptible to no limiting principle.”
Id. (quoting
McConnell, 540 U.S. at 296 (Kennedy, J., concurring in the judgment in part and
dissenting in part)) (internal quotation mark omitted).
Even if it were not clear after Citizens United (as, in fact, it is) that First
Amendment freedoms may not be curtailed to address mere influence or the
perception of such influence in the political arena, any question about whether
Citizens United’s pronouncement applies in the context of contribution limits
was resolved by this Court in Green Party of Connecticut v. Garfield, 616 F.3d
189 (2d Cir. 2010). There, the Court addressed the validity of Connecticut’s bans
on campaign contributions to candidates for state office from state contractors
and lobbyists. See
id. at 194. Some of the evidence before the Green Party panel
“suggest[ed] that many members of the public generally distrust lobbyists and
the ‘special attention’ they are believed to receive from elected officials.”
Id. at
206. This Court said there that “influence and access,” without more, “are not
sinister in nature,” but are part of representative
government. 616 F.3d at 207.
Citing Citizens United, the Court held that “evidence demonstrating that
lobbyist contributions give rise to an appearance of ‘influence’ has no bearing on
whether the . . . ban on lobbyist contributions is closely drawn to the state’s
anticorruption interest.”
Id. at 207 (citation omitted).
The majority distinguishes between “mere influence or access to elected
officials” and “improper or undue influence,” suggesting that while the former
may be an insufficient basis on which to limit First Amendment freedoms, the
latter is not. Maj. Op. at 22-23 & n.14. To be clear, if “improper or undue
influence” means nothing more than an appearance of quid pro quo corruption
arising, as Buckley put it, “from public awareness of the opportunities for abuse
inherent in a regime of large individual financial contributions,” 424 U.S. at 27,
I have no quibble with the majority’s position. Citizens United, however, clearly
“rejected a claimed governmental interest ‘in equalizing the relative ability of
individuals and groups to influence the outcome of elections,’ and rejected the
concern over the ‘undue influence’ of money serving as a form of corruption that
justifies regulation.” Samuel Issacharoff, On Political Corruption, 124 Harv. L.
Rev. 118, 125-26 (2010) (quoting Citizens
United, 130 S. Ct. at 904). Thus,
contribution limits are acceptable only when they are closely drawn to tackle
real or apparent quid pro quo corruption.
This is no unimportant point. By requiring that a regulation suppressing
political speech and association be closely drawn to address the threat of quid
pro quo corruption (or the perception that large contributors will secure their
quid), courts strive to draw a principled constitutional line—a line that permits
legislatures to address the significant danger corruption poses to representative
democracy while it vigorously protects political speech by ensuring that First
Amendment principles are enforced. The generic influence theory is, in
contrast—and as the Citizens United Court recognized—“susceptible to no
limiting principle.” Citizens United, 130 S. Ct. at 910 (quoting
McConnell, 540
U.S. at 296 (Kennedy, J., concurring in the judgment in part and dissenting in
part)) (internal quotation mark omitted). Today it disfavors “doing business”
contributors. But all those who seek to influence politicians are vulnerable to
being perceived as having influence that is “undue.” If demonstrating such a
perception is enough to bear the legislature’s First Amendment burden in
justifying restrictions on speech and association, that burden is light indeed.
%%%
Focusing properly only on the prevention of quid pro quo corruption or its
appearance, I next conclude that the New York City restrictions at issue are
“closely drawn” to serve the interest which justifies the limitations they place on
First Amendment rights. Because I find this question more difficult than my
colleagues, however, I write briefly to explain my position.
The Supreme Court has not yet addressed the First Amendment
implications of campaign finance laws that impose stricter contribution limits
on the political contributions of some individuals who are seen to pose a
particularly serious threat to the government’s interest in preventing the
appearance or actuality of quid pro quo corruption. Federal law has long
prohibited government contractors from making contributions to “any political
party, committee, or candidate for public office or to any person for any political
purpose or use” while these contractors are seeking or performing pursuant to
a contract. The relevant provision, however—2 U.S.C. § 441c—has not come
before the Court. This Court in Green Party upheld a contribution ban imposed
on Connecticut contractors and related individuals in the wake of a corruption
scandal, 616 F.3d at 205, but invalidated a ban imposed on lobbyists and their
families, finding insufficient evidence to demonstrate that all such contributions
give rise to an appearance of corruption,
id. at 206-07. Other courts have upheld
laws limiting in various ways the campaign contributions of casino operators, see
Casino Ass’n of La. v. State ex rel. Foster,
820 So. 2d 494 (La. 2002), lobbyists, see
N.C. Right to Life, Inc. v. Bartlett,
168 F.3d 705 (4th Cir. 1999), and municipal
bond traders, see Blount v. SEC,
61 F.3d 938 (D.C. Cir. 1995). But the case law
is relatively sparse, and no case has addressed a set of limits precisely analogous
to those here.
The law at issue, to survive First Amendment scrutiny, must both serve
the City’s anticorruption interest and be “closely drawn” to achieve this interest.
There is reason to question whether New York City’s “doing business”
restrictions satisfy this test. Thousands of New Yorkers are severely restricted
in the amounts they may contribute or have matched as a result of these
restrictions, some by virtue of no more than a family relationship or their
leadership positions in institutions such as the Metropolitan Museum of Art or
the Cathedral Church of St. John the Divine. See Joseph Goldstein, City
Blacklist Limits Giving by 12,000, N.Y. Sun, August 14, 2008,
http://www.nysun.com/new-york/city-blacklist-limits-giving-by-12000/83868. By
contrast, other New Yorkers who would qualify as “doing business” with the City
under any ordinary understanding of the term (such as those leading municipal
labor unions) are subject only to the higher limits. Furthermore, New York’s law
restricts “doing business” contributions to campaigns for specified City offices
regardless of whether the particular office at stake plays any role in the business
relationship that is the trigger for the stricter limits.7 Despite the magnitude of
the disparity between contributions permitted from the disfavored “doing
7
For instance, the owner of a small apartment complex with an application pursuant to N.Y.C. Charter
§ 197-c pending before one of New York City’s fifty-nine community boards is tightly restricted in the
amount she may contribute to a candidate running for comptroller, even though the comptroller plays
no role in the approval process outlined in section 197-c. See Karnovsky Decl. ¶¶ 8-27.
business” contributors and the rest of the polity, moreover, in terms of the
amounts they may contribute, there is reason to question whether this stark
difference in treatment is in fact necessary—whether the new limits are more
effective at preventing actual or apparent corruption than the generally
applicable contribution limits that preceded them. Indeed, there is little record
evidence of any quid pro quo corruption involving a New York City official since
the enactment of the generally applicable limits over 20 years ago.8
The majority relies in part on the “objective[] reasonable[ness]” of “the
connection between money and municipal action” to uphold the strict limits New
York City’s law places upon the free speech and associational rights of those
“doing business.” Maj. Op. at 31. The Supreme Court has stated, however, that
“[w]hen the Government defends a regulation on speech as a means to redress
past harms or prevent anticipated harms, it must do more than simply posit the
existence of the disease sought to be cured. It must demonstrate that the recited
harms are real, not merely conjectural.” Turner Broad. Sys, Inc. v. FCC, 512
U.S. 622, 664 (1994) (plurality opinion) (citation omitted) (internal quotation
marks omitted); see also Colo. Republican Fed. Campaign Comm. v. FEC,
518
U.S. 604, 618 (1996) (opinion of Breyer, J.) (applying Turner in the campaign
finance context); Shrink
Mo., 528 U.S. at 392 (“We have never accepted mere
8
In fact, the Charter Revision Commission (“CRC”) specifically noted in 1998 that since the City enacted
the general limits prohibiting the large contributions of the past, “[g]enerally there is no evidence that
. . . campaign contributions [by those “doing business” with the City] actually influence the award of a
particular contract or passage of a bill.” Pines Decl., Ex. F, Report of the N.Y.C. Charter Revision
Comm’n at 19.
conjecture as adequate to carry a First Amendment burden . . . .”). Requiring the
City to point to evidence demonstrating its anticorruption concern, moreover,
does not amount to “giving every corruptor at least one chance to corrupt.” Maj.
Op. at 27. Reports of recent scandals are one form of evidence that tends to show
corruption or its appearance, see, e.g., Green
Party, 616 F.3d at 200, but so do
other forms of evidence, including, inter alia, testimony by those familiar with
the political life of the community, see Shrink
Mo., 528 U.S. at 393, and surveys
of the populace, see
id. at 394.
On balance, however, and upon a close examination of the record, I agree
with the majority’s conclusion that the City has adequately demonstrated that
its “doing business” contribution limits address a real and not a conjectural
corruption concern. First, a report prepared for the Campaign Finance Board
(“CFB”) in 2006 reported that those “doing business” with the City tend to give
larger contributions to candidates (albeit within the 1988 contribution limits) as
compared to those lacking such business relationships. See Loprest Decl., Ex.
A, Municipal Campaign Finance and “Pay-to-Play”: An Analysis of Doing
Business Contributions in New York City (“Pay-to-Play Report”) at 12.9 The
Report cites to specific instances of large donations by real estate developers, in
particular, during the very period when matters in which these developers had
9
The Pay-to-Play Report reaches this conclusion using a different definition than the one eventually adopted by the City,
including only “[f]irms or individuals who are principals of firms who have contracts with the City valued at $100,000
or more[,] and/or . . . [r]egistered lobbyists and lobbyist clients.” Id. at 4. However, the Report’s conclusions still
provide evidence in support of the lowered campaign contributions, since many of the contributors captured under the
Report’s definition would also fall within the CFA’s definition of those “doing business” with the City.
an interest were pending before City authorities. See
id. at 31-37. Even without
evidence that such contributions were made in exchange for a quid, they could
well foster the appearance of corruption in City politics. See
Buckley, 424 U.S.
at 27 (“Of almost equal concern as the danger of actual quid pro quo
arrangements is the impact of the appearance of corruption stemming from
public awareness of the opportunities for abuse inherent in a regime of large
individual financial contributions.”). Also significant is the fact that New York
City voters in 1998 passed a referendum altering the New York City Charter to
“require[e] disclosure and regulation of contributions by those doing business
with the City of New York.” LaRue Decl., Ex. B, Charter Revision Comm’n’s
Proposal on Campaign Fin. Reform. The Supreme Court has instructed that
such votes may properly be taken as evidence of a perception of corruption that
legislatures may legitimately address. See Shrink
Missouri, 528 U.S. at 394.
Granted, the record also contains troubling indications that at least some
of the proponents of the “doing business” limits may have aimed at curtailing the
influence of “doing business” contributors as much as corruption or its
appearance. See, e.g., Pines Decl., Ex. F. Report of the New York City Charter
Revision Comm’n at 19 (noting that donations by “doing business” contributors
“at a minimum . . . create the perception that [such] donors have the opportunity
and desire to exercise undue influence over elected officials”). The
anticorruption interest pressed by the City in justification of the new
contribution limits, however, is borne out in the record. And in these
circumstances, the Supreme Court’s precedents regarding contribution limits
require the conclusion that New York City’s “doing business” restrictions are
closely drawn, despite the lack of a perfect fit between these restrictions and the
threat of real or perceived corruption. Indeed, while the Supreme Court has
never had occasion to address a campaign finance scheme involving targeted,
variable limits as are at issue here, it has consistently counseled that, outside
narrow circumstances, see Randall v. Sorrell, 548 U.S. 230, 248-62 (2006),
deference is owed to legislative determinations regarding campaign contribution
restrictions. See, e.g.,
McConnell, 540 U.S. at 137. Judged by this precedent,
New York City’s “doing business” contribution limits fall within—although
perhaps barely within—the bounds of the Supreme Court’s contribution limits
jurisprudence.
First, those “doing business” within the meaning of the law are held to the
stricter contribution limits only while doing business and for a short period
thereafter—strongly suggesting that the law is aimed at the particular danger
of real or apparent quid pro quo arrangements, rather than mere influence. See
McConnell, 540 U.S. at 167 (noting that certain “regulations . . . are reasonably
tailored, with various temporal . . . limitations designed to focus the regulations
on the important anticorruption interests to be served”). The Supreme Court
has said, moreover, that contribution limits, as opposed to bans, “involve[] little
direct restraint on [a contributor’s] political communication, for [they] permit[]
the symbolic expression of support evidenced by a contribution” and do not
otherwise “infringe the contributor’s freedom to discuss candidates and issues.”
Buckley, 424 U.S. at 21.10 While it seems to me an open question whether the
City could not achieve its anticorruption goals with less severe restrictions on
“doing business” contributors, moreover, the Supreme Court has instructed that
courts have no “scalpel to probe” whether a legislative body has selected the
precisely optimal balance of free speech and security against corruption.
Id. at
30. Cf. FEC v. Nat’l Right to Work Comm.,
459 U.S. 197, 210 (1982) (“Nor will
we second-guess a legislative determination as to the need for prophylactic
measures where corruption is the evil feared.”). As to the non-matching
restriction placed upon contributions made by the family members or work
associates of individuals engaged in lobbying, the majority properly cites to
record evidence of circumvention. See Maj. Op. at 41 n.20. And finally, while I
continue to be troubled that the limits apply even as to campaigns for offices in
which the officeholder may have no direct authority with regard to the particular
business relationship at issue, this feature of the “doing business” restrictions
is not unique to the CFA. See 2 U.S.C. § 441c. In any event, appellants have
waived this argument by including it only in their reply brief. See Norton v.
10
As the majority opinion notes, appellants make no argument that the “doing business” restrictions
prevent candidates from amassing sufficient funds to run effective campaigns, as the unconstitutional
Vermont law in Randall,
548 U.S. 230, did. See
id. at 248-62; see also Green
Party, 616 F.3d at 201.
Sam’s Club,
145 F.3d 114, 117 (2d Cir. 1998).
%%%
Despite some disagreement with the majority in terms of the analysis
here, I share much common ground with the majority opinion. I agree that the
ban on contributions by LLCs, LLPs, and partnerships must be upheld pursuant
to FEC v. Beaumont, 539 U.S. 146, which the Supreme Court declined to
overrule in Citizens United. More fundamentally, I agree that individual
citizens, not their government, should determine who may speak and to whose
speech others will listen. See Maj. Op. at 14-15. The Supreme Court has
recognized that “[l]eveling electoral opportunities [by restricting political speech]
means making and implementing judgments about which [candidates’] strengths
should be permitted to contribute to the outcome of an election.”
Davis, 554 U.S.
at 742. The First Amendment, however, “[p]remised on mistrust of
governmental power . . . stands against attempts to disfavor certain subjects or
viewpoints,” as well as to draw distinctions among speakers. Citizens
United,
130 S. Ct. at 898. This is why “the concept that government may restrict the
speech of some elements of our society in order to enhance the relative voice of
others is wholly foreign to the First Amendment.”
Buckley, 424 U.S. at 48-49.
While I disagree with the majority’s analysis in the respects noted here, neither
the majority opinion nor this concurrence casts doubt on the paramount
importance of upholding the freedom of individuals to speak as they wish about
the political life of the nation or of their communities. It is in the knowledge of
this fundamental agreement that I respectfully concur as to Parts I, II and III.A,
and concur in the judgment as to Part III.B-E.
