Floyd Abrams, Who Argued Citizens United, Writes Letter for Gov. Cuomo Defending New NY Disclosure Requirements

Floyd has consistently been an opponent of campaign finance limits, but he has been more open to arguing for the constitutionality of campaign disclosure laws. (In the letter below, he is representing the views of a client, but my sense is he would not write this letter if he disagreed with these arguments.)

Here is a letter he wrote to the court defending a recent controversial NY campaign disclosure law:

What remains to be decided is whether the law, as adopted, is consistent with the First Amendment.

In this respect, both of the sections of law at issue in this case were designed to assure that the public has more information about the identity of those individuals and entities that fund speech relating to elections and other public policy issues. Section 172-e addresses a specific issue of nondisclosure brought about by a loophole in the law that has been exploited by several not-for profit groups. Under Article I-A of the Legislative Law (“the Lobbying Act”), sections 1-h and 1-j, organizations subject to Section 501(c)(4) of the Internal Revenue Code that engage in lobbying either on their own behalf or for clients are required to disclose their “source of funding” to the Joint Commission on Public Ethics (“JCOPE”). However, under the law as it existed prior to the enactment of Section 172-e, Section 501(c)(3) organizations were exempt from such disclosure requirements. The result has been that organizations such as Citizens Union that have both a 501(c)(3) entity and a 501(c)(4) one can transfer moneys received from the former to the latter, thus avoiding any disclosure obligation. Indeed, for some such organizations, if one tries to donate to the 501(c)(4), one is directed to the donations page of the affiliated 501(c)(3).

Far from being overbroad, Section 172-e is extremely limited in its scope. It imposes new  disclosure requirements only when Section 501(c)(3) entities provide “in kind donations” valued at $2,500 to a 501(c)(4) entity and only requires entities subject to Section 501(c)(3) to disclose larger donations. It also provides that if any such disclosure “may cause harm, threats, harassment, or reprisals to the source of the donation or to individuals or property affiliated with the source of the donation” the Attorney General or his or her designee may determine not to require the disclosure, a decision subject to appeal to an independent “judicial hearing officer” who is “not affiliated with oremployed by the department of law.”

As for Section 172-f, it was intended to shed sunlight on dark money in politics by requiring Section 501(c)(4) entities that spend a significant amount of money (over $10,000) on issue advocacy, to disclose their identities and the identities of their large donors. Section 501(c)(4) entities that engage in lobbying are already required to register with JCOPE and to disclose their donors; the addition of entities that engage in issue advocacy is similarly constitutional. The law is narrowly tailored, only applying to Section 504(c)(4) entities and only when they spend and receive over a high dollar amount on a specific kind of public political advocacy. This is designed to promote transparency in the political process and to combat the role of dark money in politics. It contains, as well, the same protection for individuals or entities that assert that they may be harmed or harassed as a result of the newly required public disclosure as set forth above.

(h/t Jacob Gershman)

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