Is Utah’s Prohibition of Donations to Legislators During the Legislative Session Constitutional?

In this case, the U.S. Court of Appeals for the Fourth Circuit upheld North Carolina’s session contribution ban, which applied only to contributions by lobbyists. Here’s a snippet of the court’s reasoning:

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).

Contrast the Bartlett case with a case out of the Eastern District of Missouri, where the district court struck down a session contribution law that prohibited all contributions — no matter the source — made to any person serving in a statewide office, or who was a candidate for statewide office (including U.S. Representative/Senator). The state legislative session in Missouri lasts for approximately 4.5 months. The district court struck down Missouri’s session contribution law on a number of grounds, including that it was not narrowly tailored to advance the state’s compelling interest in combatting corruption and that it prohibited candidates from contributing to their own campaigns during the legislative session, and indirectly imposed a limit on campaign expenditures:

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.

In Kimbell v. Hooper, the Vermont Supreme Court upheld a session contribution law that applied only to contributions from lobbyists. The court addressed the issue briefly, reasoning as follows:

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).

A case out of the Eastern District of Tennessee addressed a statute, like that one at issue in Shrink (the Missouri case), that prohibited contributions to both current legislators and non-incumbent candidates during the legislative general session. The Emison court entered an injunction prohibiting enforcement of the limitation as to non-incumbent candidates, but leaving the statute intact as to current legislators. The statute applied to all contributions, whether from lobbyists or not:

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).

The Alaska Supreme Court struck down Alaska session contribution law, again on the ground that it applied to both incumbents and non-incumbents. Although it’s not clear from the opinion, it appears that the Alaska provision applied to all contributions, whether from lobbyists or not. Unlike the Emison court, it declined to sever the statute and allow the portion applying the restriction to incumbents stand:

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.

In Arkansas Right to Life, the federal district court struck down an Arkansas law that prohibited contributions, from any source, that applied only to incumbent legislators and other state office seekers. The court reasoned that the statute was not narrowly tailored to combat the compelling interest in opposing corruption (and the appearance of corruption) because (1) it banned contributions only during the legislative session, when corruptive contributions could be made at any time, and (2) it prohibited large and small contributions:

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.

In State v. Dodd, the Florida Supreme Court struck down Florida’s session contribution statute, which applied to all contributions — whether from lobbyists or not — made to a candidate for statewide office — whether incumbent or not — during the legislative session. The court concluded the statute was unconstitutional because (1) it was not narrowly tailored to fight the appearance of corruption because it included non-incumbent candidates in its prohibitions; (2) it applied to all legislative sessions, and the legislature could be called into session at any time during the year; (3) it failed to recognize that corruption did not begin or cease with the legislative session; and (4) the statute prohibited candidates from contributing to their own campaigns. The Dodd court’s analysis is sufficiently to merit quoting a length:

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).