2d Circuit Issues Important Campaign Finance Decision Affirming Constitutionality of NY “Pay to Play” Rules, Ban on Entity Contributions

The opinion is here [updated link].  See also this Thomson Reuters report.  Among other things, the opinion

(1) confirms that lower level scrutiny applies to laws regulating contributions even after Citizens United (“Since the Supreme Court preserved the distinction between expenditures and contributions, there is no basis for Appellants’ attempt to broaden Citizens United. Appellants’ selective and misleading quotes carefully skip over the Court’s clear distinction between limits on expenditures and limits on contributions”);

(2) affirms that the anti-circumvention interest remains valid after Citizens United and FEC v. Beaumont remains good law (“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)”);

(3) states that broader forms of influence may count as corruption for purposes of sustaining contribution limits (“Although Citizens United stated that mere influence or access to elected officials is insufficient to justify a ban on independent corporate expenditures, improper or undue influence presumably still qualifies as a form of corruption”)(Judge Livingston disagreed on this point); and

(4) evidence of actual recent corruption is not necessary to sustain a contribution limit (“Appellants essentially propose giving every corruptor at least one chance to corrupt before anything can be done, but this dog is not entitled to a bite.”), though there was enough evidence of recent corruption in any case to justify the City’s law.

Judge Calabresi issued a short concurring opinion taking on a broader issue, the legitimacy of an equality interest for campaign finance regulation:

I agree completely with the Supreme Court that the First Amendment protects each person’s right to express political beliefs through money. Where I disagree with the Court is in its repeated insistence that any recognition of the “level playing field” interest (elsewhere referred to as the “antidistortion interest,” Citizens United v. FEC, 130 S. Ct. 876, 903 (2010)) is inconsistent with this right. To the contrary, the antidistortion interest promotes this right in two important ways. First, it prevents some speakers from drowning out the speech of others. And second, it safeguards something of fundamental First Amendment importance—the ability to have one’s protected expression indicate the intensity of one’s political beliefs. These values, moreover, have not gone unrecognized in underlying First Amendment jurisprudence.

[Disclosure: I am litigating similar issues in the Thalheimer case (quoted by the 2d Circuit above) against the same lawyers representing the challengers in this litigation.  The Thalheimer case is back before the federal district court on cross-motions for summary judgment.]

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