Ognibene v. Parkes

• Decision Date: 06 February 2009
• Docket Number: No. 08 Civ. 1335(LTS)(TDK).,08 Civ. 1335(LTS)(TDK).
• Citation: 599 F.Supp.2d 434
• Parties: Tom OGNIBENE, Yvette Velazquez Bennet, Viviana Vazquez-Hernandez, Robert Perez, Fran Reiter, Sheila Andersen-Ricci, Martina Franca Associates, LLC, Reiter/Begun Associates, LLC, Denis Gittens, Oscar Perez, the Kings County Committee of the New York State Conservative Party, the New York State Conservative Party, Martin Dilan, and Marlene Tapper, Plaintiffs, v. Joseph P. PARKES, S.J., in his official capacity as Chairman of the New York City Campaign Finance Board, Dale C. Christensen, Jr., Katheryn C. Patterson, and Mark S. Piazza, in their official capacity as members of New York City's Campaign Finance Board, Mark Davies, in his official capacity as Executive Director of the New York City Conflicts of Interest Board, and Monica Blum, Steven Rosenfeld, Andrew Irving, and Angela M. Freyre, in their official capacity as members of New York City's Board of Conflicts of Interest, and Michael McSweeny, in his official capacity as Acting City Clerk of New York City, Defendants.
• Court: U.S. District Court — Southern District of New York

599 F.Supp.2d 434

Tom OGNIBENE, Yvette Velazquez Bennet, Viviana Vazquez-Hernandez, Robert Perez, Fran Reiter, Sheila Andersen-Ricci, Martina Franca Associates, LLC, Reiter/Begun Associates, LLC, Denis Gittens, Oscar Perez, the Kings County Committee of the New York State Conservative Party, the New York State Conservative Party, Martin Dilan, and Marlene Tapper, Plaintiffs, v. Joseph P. PARKES, S.J., in his official capacity as Chairman of the New York City Campaign Finance Board, Dale C. Christensen, Jr., Katheryn C. Patterson, and Mark S. Piazza, in their official capacity as members of New York City's Campaign Finance Board, Mark Davies, in his official capacity as Executive Director of the New York City Conflicts of Interest Board, and Monica Blum, Steven Rosenfeld, Andrew Irving, and Angela M. Freyre, in their official capacity as members of New York City's Board of Conflicts of Interest, and Michael McSweeny, in his official capacity as Acting City Clerk of New York City, Defendants.

No. 08 Civ. 1335(LTS)(TDK).

United States District Court, S.D. New York.

February 6, 2009.

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Davidoff, Malito & Hutcher, LLP, by: Charles Capetanakis, New York, NY, Bopp, Coleson & Bostrom, by: James Bopp, Joseph Eugene La Rue, Terre Haute, IN, for Plaintiffs.

NYC Law Department, Office of the Corporation Counsel, by: Jonathan L. Pines, New York, NY, for Defendants.

Proskauer Rose LLP, by: John Hoover Snyder, New York, NY, for Amici Citizens Union, Common Cause/NY, and New York Public Interest Research Group.

Jenner & Block LLP, by: Paul March Smith, Washington, DC, for Amici Brad Lander and Mark Winston Griffith.

OPINION AND ORDER

LAURA TAYLOR SWAIN, District Judge.

Plaintiffs¹ bring this action for declaratory and injunctive relief against Defendants alleging that certain provisions of New York City's political campaign finance and lobby laws violate the First and Fourteenth Amendments to the Constitution of the United States and the Voting Rights Act, 42 U.S.C. § 1973. Specifically, Plaintiffs allege that certain recently-enacted amendments to the New York City Administrative Code ("Administrative Code"), commonly known as the "pay-to-play" rules, which reduce to levels below the generally-applicable campaign contribution limits the amounts that lobbyists, and persons engaged in certain business dealings with the City of New York, can contribute to political campaigns, ban contributions by certain types of entities, and deny matching contributions in connection with campaign contributions by lobbyists and certain persons associated with them. Plaintiffs assert that these aspects of the laws unduly burden protected political speech and association in violation of the First Amendment and deny equal protection of the laws in violation of the Fourteenth Amendment, both facially and as applied. The Court has jurisdiction of this action pursuant to 28 U.S.C. §§ 1331 and 1343(a).

Plaintiffs filed an original and an amended complaint in February 2008 and, in April 2008, moved for a preliminary injunction on some, but not all, of the claims asserted in the amended complaint. In their motion for preliminary injunctive relief, Plaintiffs raised facial constitutional challenges to the Administrative Code provisions that lower contribution limits and disallow matching funds for contributions by individuals who have "business dealings with the City" and to the Administrative Code provision prohibiting contributions from partnerships, LLCs and LLPs. The Court ordered the hearing on the injunctive relief requested consolidated with the trial of those claims on the merits. Defendants thereafter moved for summary judgment in their favor on those claims and, with the Court's consent, filed a consolidated brief in support of the motion for summary judgment and in opposition to the motion for injunctive relief. Citizens Union, Common Cause/NY and New York Public Interest Group (collectively "Organization Amici"), filed an amicus curiae brief in support of Defendants, and City Council candidates Brad Lander and Mark Winston Griffith (collectively "Candidate Amici") also filed an amicus curiae brief in support of Defendants.

The parties stipulated that there was no need for an evidentiary proceeding in connection with the motions, and the Court heard oral argument on the motions on November 25, 2008. The Court has carefully considered the submissions and arguments of the parties and amici, including the parties' post-oral argument letter submissions. For the reasons explained below, Plaintiffs' motion for injunctive relief is denied and Defendants' motion for summary judgment is granted. This Opinion constitutes the Court's findings of fact and conclusions of law for purposes of Federal Rules of Civil Procedure 52 and 65.

BACKGROUND

The following material facts are undisputed. New York City's Campaign Finance Act (the "CFA") established the New York City Campaign Finance Program (the "Program") in 1988. (Defs' 56.1 Stmt. at ¶ 6.)² The Campaign Finance Board (the "Board") administers the Program and provides public matching funds to candidates running for Mayor, Comptroller, Public Advocate, Borough President and City Council member. (Id. at ¶ 7.) The CFA imposes certain obligations on all candidates, including filing financial disclosure statements reporting contributions and expenditures, limitations on the amount of contributions that can be received from any single contributor, and the obligation to respond to the Board's requests for documentation and information to verify compliance with the Program. (Id. at ¶ 9.) Additionally, "participating candidates" (those candidates who seek to participate in the public financing system), must agree to limitations on the total amount of money the campaign spends promoting the candidate's nomination or election. (Id.) A participating candidate's campaign receives public matching funds for all eligible individual private contributions by New York City residents of up to $175 at a rate of six dollars in public funds for every one dollar in private contributions. (Id. at ¶ 10.) However, under Administrative Code sections 3-702(3) and 3-703(1-a), contributions from organizations, including unions and Political Action Committees ("PACs"), and contributions from certain individuals considered to have business dealings with the City, as defined in the law, as well as individuals identified on a lobbyist's statement of registration, are not eligible for matching. (Id. at ¶ 12.)

In general, the CFA limits per-person contributions for all covered elections in a single calendar year to $4,950 for Mayor, Comptroller or Public Advocate, $3850 for Borough President, and $2,750 for City Council.³ (Id. at ¶ 13.) Under certain circumstances, contributions exceeding these limits by up to half the applicable amount may be made. (Id.) Certain individuals who have "business dealings with the City" are subject to lower limitations,⁴ and certain types of organizations are not permitted to make any contributions. (Id. at ¶ 14.)

In 1998, a New York City Charter Revision Commission (the "Commission") made a series of recommendations relating to campaign finance reform, including that corporate contributions "should be banned outright" because they are "inherently problematic." (Id. at ¶ 17.) The Commission characterized a ban on corporate contributions as "a step toward solving" the problem of "doing business" contributions. (Id. at ¶ 18.) The Commission also proposed regulating contributions from those who do business with the City. (Id.) The Commission identified concerns relating to contractor and lobbyist contributions, but acknowledged that "[g]enerally there is no evidence that these campaign contributions actually influence the award of a particular contract or passage of a bill." (Id.; see also Pines Decl., Ex. F, Report of the New York City Charter Revision Commission dated August 20, 1998 ("1998 Commission Report") at p. 19.) Despite the lack of evidence of actual influence, the Commission concluded that there is "no doubt that these contributions have a negative impact on the public because they promote the perception that one must `pay to play.'" (Id.)

The Commission proposed, and the City's voters approved through a referendum, a 1998 Charter amendment requiring the Board to prohibit corporate campaign contributions, requiring participating candidates to disclose contributions received from individuals and entities doing business with the City and directing the Board to "promulgate such rules as it deems necessary to regulate the acceptance by candidates participating in the voluntary system of campaign finance reform of campaign contributions by individuals and entities doing business with the city, including rules that determine which business dealings shall be covered by such rules." (Defs' 56.1 Stmt. at ¶¶ 19-20, 14; see also Charter §§ 1052(a)(12)-(13).) The City Council later enacted a separate ban on corporate contributions to candidates, including non-participating candidates. (Defs' 56.1 Stmt. at ¶ 20.)

In 2005, New York City's Vendor Information Exchange System ("VENDEX"), containing information about City vendors, and a database of lobbyists registered with the City Clerk's office became available online. (Id. at ¶ 24.) The Board held several public hearings during 2005 and 2006 relating to "doing business" contributions, (Id. at ¶ 25), and requested that research be conducted by a team of students at New York University's Wagner Graduate School of Public Service based on the VENDEX and lobbying database data. In its interim report on "doing business" contributions, dated June 19, 2006, the Board reported based on the students' research that campaign contributions by individuals and entities "doing business"⁵ with the City represented 27.5% of the monies contributed in the 2001 election cycle and 22.3% of those contributed in the...