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Open Political Caucuses – Comparing the Powell and Romero Bills

January 30, 2012 by Leave a Comment
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The fallout of H.B. 477 continues up at the Utah legislature, with two bills this session — one from each side of the aisle — that would require parties to make their caucuses open to the public in certain circumstances.

One bill, H.B. 89, is proposed by Representative Kraig Powell, who promised to make this a focus of his efforts after publicly back-tracking in his original support of H.B. 477.  The other bill, S.B. 45, is being sponsored by Democratic Senator Ross Romero, currently a candidate for Salt Lake County Mayor.

I thought I’d take a couple minutes and compare the two bills, to see what the differences are.

H.B. 89 – Representative Powell

H.B. 89 is by far the simpler bill, providing simply that wherever a quorum of a “public body” is present at a meeting of a “political party, political group, or political caucus” where “legislative action” is being discussed, that meeting must be open to the public, though attendance can be regulated.

Here’s the actual text:

52-4-211.  Political caucus open to public — Conditions.

(1) A political party, political group, or political caucus is not subject to the provisions of this chapter except as provided in Subsection (2).

(2)(a) If a quorum of a public body is present at an assembly of a political party, political group, or political caucus, any discussion by the political party, political group, or political caucus of legislative action by the public body, whether the legislative action is pending, proposed, potential, or previously-passed, is open to the public.

(b) A political party, political group, or political caucus may regulate or limit attendance at a discussion described in Subsection (2)(a) if reasonable access to the discussion by the public is preserved.

A “public body” is defined in Utah Code Ann. § 52-4-103 as follows:

   (8) (a) “Public body” means any administrative, advisory, executive, or legislative body of the state or its political subdivisions that:
(i) is created by the Utah Constitution, statute, rule, ordinance, or resolution;
(ii) consists of two or more persons;
(iii) expends, disburses, or is supported in whole or in part by tax revenue; and
(iv) is vested with the authority to make decisions regarding the public’s business.

(b) “Public body” does not include a:
(i) political party, political group, or political caucus; or
(ii) conference committee, rules committee, or sifting committee of the Legislature.

A “quorum” is defined as “a simple majority of the membership of a public body,” though it “does not include a meeting of two elected officials by themselves when no action, either formal or informal, is taken on a subject over which these elected officials have advisory power.”

None of the other key terms in H.B. 89 are defined, but they are more self-explanatory.  The practical effect of the bill would seem to be almost exclusively limited to state legislative party caucuses because, although a non-partisan legislative body like a city council might qualify as a “public body,” in order to be subject to the provisions of this chapter, a majority of the members of the city council would have to assemble at a meeting of a political party, political group, or political caucus, where a legislative action (past, current, or future) was being discussed.  This seems unlikely, although it’s possible to imagine a scenario where, say, a (quorum) a simple majority of Salt Lake City council members decide to attend a Democratic or Republican Party meeting where the legislation efforts of the council would be discussed — if that happened, it seems that H.B. 89 would require that meeting to be open to the public.

S.B. 45 – Senator Ross Romero

Senator Romero’s bill is much more detailed that Representative Powell’s and reads as follows:

52-4-211. Meetings of legislative political caucuses.

(1) As used in this section:

(a) “Legislative party leadership” means:

(i) the speaker of the House of Representatives;
(ii) the president of the Senate;
(iii) the leader, whip, assistant whip, or manager of a legislative political caucus; or
(iv) the chair or vice chair of the Executive Appropriations Committee, the Senate Rules Committee, or the House Rules Committee.

(b) (i) “Legislative political caucus” means an assembly of legislators:

(A) to which belong a majority of legislators from the same registered political party in a chamber of the Legislature;
(B) called to assemble by a person authorized by the caucus to do so for the purpose of discussing policy, legislation, strategy, plans, or registered political party business; and
(C) on a day that the Legislature is conducting the annual general session, a veto-override session, or a special session.

(ii) “Legislative political caucus” does not mean:

(A) an assembly of legislators who are an informal or unofficial subgroup of a registered political party;
(B) an assembly of legislators who meet because the legislators share a particular political philosophy distinguishable from the legislative political caucus; or
(C) a meeting only attended by two or more legislative party leadership.

(c) “Registered political party” is as defined in Section 20A-8-101 .

(2) (a) A legislative political caucus is not required to comply with the provisions of this chapter except as provided in this section.

(b) A legislative political caucus shall be open to the public except in the circumstances described in Subsection (3).

(3) A legislative political caucus is not required to be open to the public during the portion of the caucus during which business is conducted relating to:

(a) a purpose described in Subsection 52-4-205 (1); or
(b) caucus or legislative party leadership elections.

Senator Romero’s bill would seem to open all official party legislative caucuses to the public that (1) are called by party leadership, (2) during the legislative session, (3) for the purpose of discussing legislation, plans, or strategy.  In that sense it is broader than H.B. 89, which would apply only to caucuses where a (1) a quorum was present, and (2) were held for discussions of legislative action.  As currently drafted, S.B. 45 would also be more narrow that H.B. 89 in that it would only apply to assemblies of “legislators” and would only operate when the legislature is in session.

However, all these distinctions may be more apparent than real, as it is unlikely that Representative Powell’s bill would have much (if any) application outside of the the legislative session, and Senator Romero’s bill contains a number of exceptions designed to allow the caucuses to be closed in specific situations (such as party leadership elections and the other many situations identified in Utah Code Ann. 52-4-205(1)) and to exempt specific groups, such as the Patrick Henry Caucus, for example, from the open caucus requirement.

Overall, the bills are similar enough in their effect, that’s it’s probably a wash between the two.  The more interesting fight will take place between those who will argue that it’s an impermissible limitation on the freedom of association to mandate closed caucuses at all.  I’ll be posting on that a bit later, if I can find the time.

 

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Montana Supreme Court Thumbs its Nose at Citizens United, Upholds Montana Law Prohibiting Corporate Contributions

January 2, 2012 by 2 Comments
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In a bolt from the blue last Friday, the Montana Supreme Court issued its decision in Western Tradition Partnership, Inc. v. Attorney General, pushing back against the United States Supreme Court’s decision in Citizen United v. Federal Election Comm’n.  In Western Tradition Partnership, the court interpreted Citizens United to allow for Montana’s prohibition on corporate contributions for candidates because of Montana’s unique history and susceptibility to corruption from corporate money.

It’s a decision bound to generate a lot of buzz and have a lot of populist appeal.  It’s also a ruling that runs completely contrary to the understandings of everyone — except, apparently, five of the seven members of the Montana Supreme Court — about what Citizens United meant and what it did.  I’m sure it would shock Justice Stevens to know his concerns about the Supreme Court’s majority opinion in Citizens United were vastly overstated; after all, why all the worry when states can simply opt out by judicial decision??!!

Immediately upon learning about the ruling, I went and downloaded the full copy and started reading.

Despite headlines to the contrary (e.g., “Montana Supreme Court Rules that Citizens United Does Not Apply in Montana“), the Montana Supreme Court’s decision was actually based on its own interpretation and application of the rule of law set down in Citizens United.  State supreme courts, as well as other inferior federal courts, do this kind of thing all the time.  Whenever the United States Supreme Court sets down a rule, it does so in the context of a specific case.  So, courts looking to apply that rule to another case, with a different set of facts, have to determine if there are factual distinctions that would justify a different result, even given the application of the same rule.

The Montana Supreme Court’s reasoning goes something like this (for a more pithy version, check out Marco Brown’s comment here):  In Citizens United, the United States Supreme Court determined that the challenged FEC rules should be struck down because there was not a sufficiently compelling interest supporting them.  But in Montana — a rural state with a small population, proud history of cheap, grassroots campaigning, susceptibility to large energy and mineral extraction corporations, and a long history of corruption — there is a greater interest that is sufficiently compelling to uphold a ban on corporate contributions.  In addition, Montana elects its judges, and the potential for corporate domination of judicial elections is another factor that enhances Montana’s interest vis-a-vis the ones considered and rejected by the United States Supreme Court in Citizens United.

Its an approach to the question that’s theoretically legitimate.  Indeed, if one believes that strict scrutiny should not be “strict in theory, but fatal in fact,” there should be some set of facts creating an interest sufficiently compelling that could be served by a narrowly tailored statute — right?

The trouble with the Montana Supreme Court’s approach is that it’s an approach that the United States Supreme Court expressly rejected last year, at least in the context of corporate political speech.  From the majority opinion in Citizens United:

We return to the principle established in Buckley and Bellotti that the Government may not suppress political speech on the basis of the speaker’s corporate identity. No sufficient governmental interest justifies limits on the political speech of nonprofit or for-profit corporations (emphasis added).

Despite this unequivocal and unusually clear statement, the Montana Supreme Court persisted in its contention, that the United States Supreme Court wasn’t really talking about government in small-population mineral-rich rural states like Montana.

Western Tradition Partnership will (and should) be quickly reversed on certiorari appeal for the reasons set out by the primary dissenting Justice, James C. Nelson:

Unquestionably, Montana has its own unique history. No doubt Montana also has compelling interests in preserving the integrity of its electoral process and in encouraging the full participation of its electorate. And Montana may indeed be more vulnerable than other states to corporate domination of the political process. But the notion argued by the Attorney General and adopted by the Court—that these characteristics entitle Montana to a special “no peeing” zone in the First Amendment swimming pool—is simply untenable under Citizens United.

Admittedly, I have never had to write a more frustrating dissent. I agree, at least in principle, with much of the Court’s discussion and with the arguments of the Attorney General. More to the point, I thoroughly disagree with the Supreme Court’s decision in Citizens United. I agree, rather, with the eloquent and, in my view, better-reasoned dissent of Justice Stevens. As a result, I find myself in the distasteful position of having to defend the applicability of a controlling precedent with which I profoundly disagree.

That said, this case is ultimately not about my agreement or disagreement with the Attorney General or our satisfaction or dissatisfaction with the Citizens United decision.  Whether we agree with the Supreme Court’s interpretation of the First Amendment is irrelevant. In accordance with our federal system of government, our obligations here are to acknowledge that the Supreme Court’s interpretation of the United States Constitution is, for better or for worse, binding on this Court and on the officers of this state, and to apply the law faithful to the Supreme Court’s ruling.

Granted, there are some in the legislative and executive branches of government who would call—and, in fact, have called—for Montana to thumb its nose at the federal government, to disregard federal law, and to boldly ignore the Supremacy Clause. Regardless of those views, however, all elected officials in Montana—legislative, executive, and judicial—are sworn to “support, protect and defend the constitution of the United States.”  Obviously, this means in accordance with the Supreme Court’s interpretations of the United States Constitution. Thus, when the highest court in the country has spoken clearly on a matter of federal constitutional law, as it did in Citizens United, the highest court in Montana—this Court—is not at liberty to disregard or parse that decision in order to uphold a state law that, while politically popular, is clearly at odds with the Supreme Court’s decision. This is the rule of law and is part and parcel of every judge’s and justice’s oath of office to “support, protect and defend the constitution of the United States.” In my view, this Court’s decision today fails to do so.

There are, unquestionably, discomforting realities that accompany unlimited corporate political speech.  One can easily understand the frustrations of the majority Justices, feeling as though their state’s political process is being dragged back to 1900 by a panel of conservative United States Supreme Court Justices that simply don’t understand the opportunities for distortion in the political process that accompany unfettered corporate speech in a sparsely populated rural state.

And maybe they’re right.  But that doesn’t give them license to ignore the Constitution when the Supreme Court has spoken clearly on the matter.  Perhaps the greatest irony of the majority opinion is the fact that it forcefully expresses concern for the potential distorting and corrupting effects that corporate speech might have on the Montana’s elected judiciary.  Based on this opinion, it seems as though an elected judiciary’s understandable, though misguided, efforts to avoid Citizens United may themselves be causing the same kind of distortion.

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

November 12, 2011 by 1 Comment
bribe-slider

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

Utah Code Ann. 36-11-305 as originally enacted (1995)

36-11-305. Campaign contribution during session prohibited.

(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.

Utah Code Ann. 36-11-305 as amended (2003)

36-11-305. Campaign contribution during session prohibited.

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.

Utah Code Ann. 36-11-305 as currently enacted (2011)

36-11-305. Campaign contribution during session prohibited.

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.

North Carolina Right to Life v. Bartlett – UPHELD

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).

Shrink Missouri Government PAC v. Maupin – STRUCK DOWN

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.

Kimbell v. Hooper – UPHELD

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).

Emison v. Catalano – STRUCK DOWN AS TO NON-INCUMBENTS

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).

Alaska v. Alaska Civil Liberties Union – STRUCK DOWN

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.

Arkansas Right to Life Political Action v. Butler – STRUCK DOWN

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.

State v. Dodd – STRUCK DOWN

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).

Case Law Summary & Application to Section 36-11-305

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:

  1. Session contribution statutes appear to be universally upheld when their application is limited to contributions coming from lobbyists.
  2. Session contribution statutes appear to be universally struck down when they apply to incumbents and non-incumbents alike.
  3. 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.
  4. 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)?

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