Update — November 21, 2011: So I was directed to some advisory opinions from the Federal Election Commission (“FEC”) today, which subsequently led me to an 11th Circuit case — Teper v. Miller, 82 F.2d 989 (11th Cir. 1996) — that very clearly upholds the entry of a preliminary injunction against enforcement of a Georgia session contribution statute based on federal field preemption. I haven’t had the opportunity to Shepardize yet, but will soon.
Here’s the preemption provision, found at 2 U.S.C. § 453:
Sec. 453. State laws affected
(a) In general
Subject to subsection (b) of this section, the provisions of this Act, and of rules prescribed under this Act, supersede and preempt any provision of State law with respect to election to Federal office.
(b) State and local committees of political parties
Notwithstanding any other provision of this Act, a State or local committee of a political party may, subject to State law, use exclusively funds that are not subject to the prohibitions, limitations, and reporting requirements of the Act for the purchase or construction of an office building for such State or local committee.
Regulations adopted pursuant to the Federal Election Campaign Act at 11 C.F.R. 108.7 support a broad interpretation of the statutory preemption provision:
Federal law supersedes State law concerning the –
(1) Organization and registration of political committees supporting Federal candidates;
(2) Disclosure of receipts and expenditures by Federal candidates; and
(3) Limitation on contributions and expenditures regarding Federal candidates and political committees.
While this doesn’t affect my constitutional analysis, it does, I think, strongly suggest (and I only hedge because I have not had the chance to check whether the Teper case is still good law) that Utah’s ban on session campaign contributions is unenforceable as to candidates for federal office. This does leave open the interesting possibility that the provision would apply to Governor Herbert, together with all state legislators who are candidates for his position or for Salt Lake County Mayor (Sumsion, Romero, & McAdams), but not to legislators that are candidates for one of Utah’s U.S. Senate or House seats. Can invalidation of a law by operation of preemption create a constitutional equal protection problem? Honestly, I have no clue. But this sure is fun!
So, where does all this leave us? Here’s what I think: (1) the statute is unenforceable as to candidates for federal office, and (2) the statute may be unconstitutional as to all candidates.
Hat tip to Robert Gehrke of the Salt Lake Tribune for this story about the impact of Utah Code Ann. 36-11-305, which prohibits contributions to sitting legislators and the governor (or to their campaigns/political action committees) during the state legislative session.
Given (1) the veritable glut of current state politicians currently vying to either be one of Utah’s representatives or senators in Washington or mount a challenge to Governor Herbert, combined with (2) the extraordinarily close proximity between the end of the 2012 legislative session (March 8, 2012), GOP caucus night (March 15, 2012), and party conventions (April 21, 2012), a 45-day
money grubbing fundraising hiatus during the weeks immediately leading up to decision time may just be too big a risk for potential office-seekers to take. Carl Wimmer, Dan Liljenquist, and Stephen Sandstrom have suggested that section 36-11-305 will require them to think seriously about whether they should resign from the legislature in order to pursue their campaigns for federal office. Ben McAdams and Ross Romero have said they plan to continue serving in the legislature why they campaign for Salt Lake County Mayor.
When I read Gehrke’s article, I immediately wondered whether section 36-11-305 is constitutional, or whether it violates candidates’/contributors’ First Amendment rights. After all, even though section 36-11-305 has been on the books a while (since 1995, see below), campaign finance law is in flux these days and is front and center in public consciousness, thanks in no small part to the United States Supreme Court’s decision in Citizens United v. Federal Election Commission, Occupy Wall Street, and the inimitable Stephen Colbert. Complicating matters, section 36-11-305 has changed significantly since it was first enacted — has it moved toward or away from constitutionality? Since I’m not an expert on campaign finance law, I decided to do some investigating. Here’s what I found. All the normal caveats about the wisdom of any serious reliance on my limited expertise and half-hearted efforts apply.
Oh, and you should know that this is long. But also pretty good, I think.
If you’d just like the summary, click here.
First, Some Legislative History
(1) It is unlawful for a lobbyist or principal to make a campaign contribution or contract, promise, or agree to make a campaign contribution to a legislator or a legislator’s personal campaign committee during the time that Legislature is convened in annual general or veto override session, or in a special session convened before July 1 or a general election year.
(2) Any person who violates this section is guilty of a class A misdemeanor.
1. It is unlawful for a person, lobbyist [or], principal, or political committee to make a campaign contribution or contract, promise, or agree to make a campaign contribution to a legislator or a legislator’s personal campaign committee, or a political action committee controlled by a legislator during the time the Legislature is convened in annual general or veto override session, or in a special session convened before July 1 or a general election year.
2. It is unlawful for a person, lobbyist, principal, or political committee to make a campaign contribution, or contract, promise, or agree to make a campaign contribution, to the governor, the governor’s personal campaign committee, or a political action committee controlled by the governor during the time the Legislature is convened in annual general or veto override session, during a special session convened before July 1 of a general election year, or during the time period established by the Utah Constitution, Article VII, Section 8, for the governor to approve or veto bills passed by the Legislature in the annual general session.
2. 3. Any person who violates this section is guilty of a class A misdemeanor.
1. It is unlawful for a person, lobbyist, principal, or political committee to make a campaign contribution or contract, promise, or agree to make a campaign contribution to a legislator or a legislator’s personal campaign committee, or a political action committee controlled by a legislator during the time the Legislature is convened in annual general session, veto override session, or special session.
2. It is unlawful for a person, lobbyist, principal, or political committee to make a campaign contribution, or contract, promise, or agree to make a campaign contribution, to the governor, the governor’s personal campaign committee, or a political action committee controlled by the governor during the time the Legislature is convened in annual general session, veto override session, special session, or during the time period established by the Utah Constitution, Article VII, Section 8, for the governor to approve or veto bills passed by the Legislature in the annual general session.
3. Any person who violates this section is guilty of a class A misdemeanor.
When section 36-11-305 was first enacted in 1995, it applied only to donations that were (1) made by lobbyists, and (2) made to currently serving legislators. In 2003, the legislature enacted H.B. 187, sponsored by Representative Neil Hansen and Senator Stephenson, which amended section 36-11-305 to apply its restrictions to the governor. Although apparently no one noticed, the 2003 amendment also broadened section 36-11-305 to include, within its prohibitions, contributions from people other than lobbyists.
From reading through the statutory progression you can see that Section 36-11-305 has expanded its reach over time. When first enacted, it applied only to contributions (1) by lobbyists of their principals, (2) made directly to a legislator or to a legislator’s “personal campaign committee,” (3) during the time that the legislature was in general, special, or veto-override session.
In 2003, Representative Hansen’s amendment was adopted for the primary purpose of extending the prohibitions in 36-11-305 to the governor. However, the 2003 amendment changed the statute in other significant ways. First, it applied the prohibitions to contributions made to “political action committees” that were “controlled” by legislators or the governor. Second, and most significantly, in my view, it extended the limitation on contributions beyond lobbyists and their principals to include “persons” and “political committees” — which, for all practical purposes, includes contributions from anyone. Whereas before the 2003 amendment to section 36-11-305, legislators were free to solicit and receive contributions from non-lobbyist constituents, as well as to contribute to their own campaigns, during the session, the current version of section 36-11-305, as amended in 2003, would seem to prohibit them from doing both.
I went and listened to the Senate Debates of the 2003 amendment to section 36-11-305, and heard no references whatsoever to the extension of the prohibition to contributions to persons; all discussion centered on the appropriateness of the extension of the general prohibition to the governor. I attempted to listen to the House Debates as well, but they would not download correctly. I didn’t listen to any of the original debates in 1995, as they were not available online and I wasn’t inclined to trek over to the State Archives in the snow.
Similar Provisions on the Books in Other States
Once I got a good sense of the history and effect of Section 36-11-305, I went looking for new about similar provisions enacted in other states. Turns out that, as of 2010, according to the National Conference of State Legislatures, 30 states have passed legislation that prohibits political contributions while the state legislature is in session. Apparently, 13 of those laws apply only to lobbyists, while 17 of the laws (like Utah’s) apply to all contributions, no matter the source.
Similar Provisions in the Courts
I next searched for judicial authority addressing the constitutionality of session contribution bans. I was able to locate a few cases, and have summarized (and quoted) significant aspects of their holding below.
More generally, “[n]either the right to associate nor the right to participate in political activities is absolute.” When the interests sought to be advanced by the statutory scheme are sufficiently important, minimal burdens on one’s right to associate are constitutional. Not only are the interests served by North Carolina’s statutory scheme important, they are compelling. Moreover, the burden on appellees’ right to associate is minimal. Appellees are not prevented from contributing to the candidates and incumbents of their choice, they are only restrained from doing so while the Assembly is in session. In conclusion, this effort on the part of a state legislature to protect itself from the damaging effects of corruption should not lightly be thwarted by the courts. Here, the proper judicial posture should be one of restraint. The Constitution does not prevent this attempt on the part of North Carolina to preserve the integrity of and maintain public confidence in its legislative process. In the end, North Carolina law does nothing more than recognize that lobbyists are paid to persuade legislators, not to purchase them (citations omitted).
Furthermore, § 130.032(4) fails to recognize the reality that corruption can take place anytime, even outside the banned time-period. If corrupt practices can take place during the regular session, they can just as easily take place other times during the year. Defendants concede that the statute does not prohibit the solicitation of contributions during the legislative session. “A quid pro quo arrangement, if one existed, might very well take the form of an under-the-table or tacit I.O.U. to be redeemed after the session ends.” Defendants fail to consider that “dangling a carrot” before a legislator is more apt to produce the desired effect than paying up front and hoping s/he carries out the contributor’s wishes.
Finally, the Court notes that the statute on its face fails to exempt application of the prohibition for contributions by candidates to their own campaigns during the general assembly’s regular session. Preventing corruption or the appearance of corruption is hardly a worthy endeavor to pursue by prohibiting candidates from utilizing their own money in their campaigns. The problem of improper influence by outside interests is not implicated when the monies come from the candidate him or herself. In this respect the statute is undeniably unconstitutional as evidenced by the Buckley Court’s ruling that struck down portions of a campaign finance statute because it prohibited candidates from contributing their own monies to their campaign. The Court concludes that § 130.032(4) effectively prohibits all contributions to all persons presently holding a statewide-elected political office or legislative office, and all candidates for these offices, for a significant period of time. This prohibition on all campaign contributions while the Missouri Legislature is in session amounts to an imposition of an aggregate limit on total contributions incumbents and candidates receive during the banned time-period, in essence, a zero contribution limit. Such a contribution limit severely impacts on a candidate’s ability to expend funds which in turn impinges upon the rights of individual citizens and candidates to engage in political debate and discussion.
The defendants have failed to carry their burden of demonstrating that § 130.032(4) will alleviate actual corruption or the appearance of corruption in a direct and material way; nor have the defendants demonstrated that § 130.032(4) is narrowly tailored to further the State’s compelling interests. Accordingly, the Court concludes that 130.032(4) unconstitutionally burdens the First Amendment rights of expression and association.
If anything, the restrictions in § 266(3) are less burdensome than the dollar limits upheld in Buckley, and do not compare to the total prohibition held unconstitutional in Fair Political Practices Comm’n v. Superior Court. Section 266(3) sets no overall limits. It functions solely as a timing measure, banning contributions to individual members only while the General Assembly is in session. The Act does not prohibit contributions to political parties during session, only those to individual legislators. Consequently, the limited prohibition focuses on a narrow period during which legislators could be, or could appear to be, pressured, coerced, or tempted into voting on the basis of cash contributions rather than on consideration of the public weal. The legislature has chosen a narrowly drawn measure to avoid a serious appearance of impropriety, and we see no reason to strike that measure down (citation omitted).
Against this background, this court finds itself constrained to agree with the Supreme Court of Florida in State v. Dodd and with the Attorney General and Reporter of the State of Tennessee in Tenn.Op.Atty.Gen. No. 95-058 (May 24, 1995), that a black-out provision like that in T.C.A. § 2-10-310(a), although inspired by the commendable impulse to eliminate corruption and the appearance of corruption in political life, cannot constitutionally be applied to contributions to nonincumbent candidates for seats in the legislature (citation omitted).
Preventing corruption or its appearance is a compelling interest justifying narrowly-tailored restraints on First Amendment rights. But the very circumstance most relevant to the appearance of corruption-receipt of contributions by incumbent candidates during the session-does not imply that in-session contributions to challengers also give the appearance of corruption. The ban is therefore not narrowly tailored to the State’s compelling interest, and is invalid as to non-incumbents. But invalidating the ban only as to challengers would fundamentally unbalance a restriction which the legislature clearly intended to apply to incumbents and challengers alike, and would defeat the legislature’s clear intention as to this prohibition. We therefore decline to invalidate only part of this ban while upholding it with respect to incumbent candidates.
While it is true that Arkansas’ black-out period only applies to incumbents, and, thus is narrowly tailored in that instance, it does not take into account the fact that corruption can occur any time, and that only large contributions pose a threat of corruption. We therefore conclude that as a matter of law, § 7-6-203(g) is not narrowly drawn to serve the state’s compelling interest, and, thus, it is unconstitutional.
We cannot agree, however, that the statute advances this interest through the least intrusive means. One of the primary constitutional defects is that the Campaign Financing Act applies to all office-seekers without exception. As a result, it places restrictions on some public officials and candidates who could not possibly be subject to a corrupting quid pro quo arrangement. Dodd, for instance, presently holds no public office. He has no vote or influence to trade for campaign contributions. . . .
We find other infirmities. To the extent that the statute may be construed as applying to all legislative sessions, we believe the censorship thereby imposed has the potential to be so extreme as to be irremediably unconstitutional. It is possible that the legislature could be called into a series of sessions lasting for huge portions of any given year. . . .
[T]he sheer magnitude and practical impact of the present restriction renders it unconstitutional. Even assuming that a regular legislative session lasts only two months of the year, this is a two-month period in which the Campaign Financing Act halts all sources of financing. . . . As the Buckley Court suggested, the rights of free speech and association forbid measures that “prevent  candidates and political committees from amassing the resources necessary for effective advocacy.” We believe that the prohibition at issue here has just such an effect because it cuts off the flow of resources needed for effective advocacy during a crucial portion of the election year.
Moreover, by focusing entirely on the legislative session, the Campaign Financing Act fails to recognize that corrupt campaign practices just as easily can occur some other time of the year. Legislative committees meet throughout the calendar, frequently with the involvement of lobbyists and other special interests. Indeed, much legislation is shaped in the months immediately prior to the regular session, when committees and legislative workshops occur virtually on a continuous basis. If corrupt practices can occur during a session, they also can occur at other times. A quid pro quo arrangement, if one existed, might very well take the form of an under-the-table or tacit I.O.U. to be redeemed after the session ends. Finally, we also note — as the state concedes — that this statute forbids candidates to contribute to their own campaigns during the times in question. We believe it is specious to argue that any sort of “corruption” or inattention to legislative duties occurs as a result of this practice. Indeed, in this respect the statute is obviously unconstitutional under federal case law. The Court struck a statute precisely because it prohibited candidates from contributing to their own campaigns.
We thus believe that the Campaign Financing Act fails to accomplish its goals through the least restrictive means available, as required by law. Less restrictive measures obviously exist. For example, certain types of organizations or entities found to be most involved in creating the appearance of corruption could be subject to restrictions similar to those approved in the recent opinion in Austin. Legislators themselves could restrict their own access to campaign contributions during a legislative session through similar narrowly tailored regulations. There surely are many other ways that, alone or in combination, would be far less restrictive of free speech and associational rights than the statute in issue today (citations omitted).
From the case law summarized above (and I suspect there are more cases that I haven’t located yet), you can derive a few principles that appear to govern the constitutionality of session contribution restrictions like Section 36-11-305:
- Session contribution statutes appear to be universally upheld when their application is limited to contributions coming from lobbyists.
- Session contribution statutes appear to be universally struck down when they apply to incumbents and non-incumbents alike.
- Session contribution statutes are more likely to be upheld when they allow legislators or other incumbent office holders to contribute to their own campaigns during the legislative session.
- Session contribution statutes are more likely to be struck down (almost, though not quite, universally) when they apply to all contributions — whether from lobbyists or not.
It’s important to remember that as restrictions on core political speech — the type of speech that is at the heart of the First Amendment’s protections — session contribution laws like section 36-11-305 are subjected to strict scrutiny. This requires that the law advance a compelling interest in the least restrictive means possible. And it means laws that apply more broadly than is necessary (even if only in a relatively minor way) to advance the state interest — in this case limiting corruption and the appearance of corruption — are struck down.
Given the strict standard of review and the principles outlined above, I think we can safely say that the constitutionality of Utah’s law is uncertain. While Utah’s session contribution prohibition does not apply to non-incumbent challengers (which bodes well for constitutionality), the prohibitions are also not limited to contributions from lobbyists and have no exception allowing legislators or the governor to donate to their own campaigns during a legislative session (which would makes the prohibition more likely to be found unconstitutional). Given those facts, and the apparent judicial swing in favor of speech versus campaign finance restrictions signaled by Citizens United, section 36-11-305′s constitutionality is definitely in doubt, though it could likely be fixed simply by once again limiting its application to donations from lobbyists and providing an exception for candidates to donate to their own campaigns.
I’d love your thoughts, whether or my analysis or what this all means (if anything)?