Ognibene v. Parkes

• Decision Date: 12 January 2012
• Docket Number: 09–1432–cv (Con).,Docket Nos. 09–0994–cv (Lead)
• Citation: 671 F.3d 174
• Parties: Tom OGNIBENE, Yvette Velazquez Bennet, Viviana Vazquez–Hernandez, Martin Dilan, Marlene Tapper, Robert Perez, Fran Reiter, Sheila Andersen–Ricci, Martina Franca Associates, LLC, Reiter/Begun Associates, LLC, Denis Gittens, Oscar Perez, Kings County Committee of the New York State Conservative Party, and New York State Conservative Party, Plaintiffs–Appellants,Michele Russo and Leroy Comrie, 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., in his official capacity as Member of the New York City Campaign Finance Board, Katheryn C. Patterson, in her official capacity as Member of the New York City Campaign Finance Board, Mark S. Piazza, in his official capacity as Member of the New York City Campaign Finance Board, Mark Davies, in his official capacity as Executive Director of the New York City Conflicts of Interests Board, Monica Blum, in her official capacity as Member of the New York City Conflicts of Interests Board, Steven Rosenfeld, in his official capacity as Member of the New York City Conflicts of Interests Board, Andrew Irving, in his official capacity as Member of the New York City Conflicts of Interests Board, Angela M. Freyre, in her official capacity as Member of the New York City Conflicts of Interests Board, and Michael McSweeny, in his official capacity as Acting City Clerk of New York City, Defendants–Appellees.*
• Court: U.S. Court of Appeals — Second Circuit

671 F.3d 174

Tom OGNIBENE, Yvette Velazquez Bennet, Viviana Vazquez–Hernandez, Martin Dilan, Marlene Tapper, Robert Perez, Fran Reiter, Sheila Andersen–Ricci, Martina Franca Associates, LLC, Reiter/Begun Associates, LLC, Denis Gittens, Oscar Perez, Kings County Committee of the New York State Conservative Party, and New York State Conservative Party, Plaintiffs–Appellants,Michele Russo and Leroy Comrie, 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., in his official capacity as Member of the New York City Campaign Finance Board, Katheryn C. Patterson, in her official capacity as Member of the New York City Campaign Finance Board, Mark S. Piazza, in his official capacity as Member of the New York City Campaign Finance Board, Mark Davies, in his official capacity as Executive Director of the New York City Conflicts of Interests Board, Monica Blum, in her official capacity as Member of the New York City Conflicts of Interests Board, Steven Rosenfeld, in his official capacity as Member of the New York City Conflicts of Interests Board, Andrew Irving, in his official capacity as Member of the New York City Conflicts of Interests Board, Angela M. Freyre, in her official capacity as Member of the New York City Conflicts of Interests Board, and Michael McSweeny, in his official capacity as Acting City Clerk of New York City, Defendants–Appellees.*

Docket Nos. 09–0994–cv (Lead)

09–1432–cv (Con).

United States Court of Appeals, Second Circuit.

Argued: Oct. 18, 2010.Decided: Dec. 21, 2011.Amended: Jan. 12, 2012.

Plaintiffs–Appellants ¹ brought this action in February 2008 against the Defendants–Appellees,² challenging the constitutionality of certain provisions of New York City's political campaign finance and lobby laws that (1) limit campaign contributions by individuals and entities that have business dealings with the City; (2) exclude such contributions from matching with public funds under the public financing scheme; and (3) expand the prohibition on corporate contributions to include partnerships, LLCs, and LLPs. Plaintiffs appeal from a February 6, 2009 decision of the United States District Court for the Southern District of New York ( Swain, J.) granting the Defendants' motion for summary judgment. We affirm the district court's dismissal of Plaintiffs' challenges as to all three provisions.Affirmed.James Bopp, Jr., Joe LaRue, of counsel, Bopp, Coleson & Bostrom, Terre Haute, IN, and Charles Capetanakis, Davidoff Malito & Hutcher LLP, New York, NY, for Plaintiffs–Appellants.

Jane L. Gordon, Senior Counsel (Edward F.X. Hart, Jonathan Pines, Lisa F. Grumet, Andrew J. Rauchberg, on the brief), for Michael A. Cardozo, Corporation Counsel of the City of New York, New York, NY, for Defendants–Appellees.

Paul M. Smith, Luke P. McLoughlin, David Newman, Jenner & Block, LLP, New York, NY, for Amicus Curiae 2009 City Counsel Candidates Brad Lander and Mark Winston Griffith.John H. Snyder, Proskauer Rose LLP, New York, NY, for Amicus Curiae Citizens Union.Before: LIVINGSTON, CALABRESI, Circuit Judges, and CROTTY, District Judge.^**

Judge CALABRESI and Judge LIVINGSTON concur in separate opinions.

PAUL A. CROTTY, District Judge:

Appellants seek declaratory and injunctive relief, alleging that recently-enacted amendments to the New York City Administrative Code, commonly known as the “pay-to-play” rules, violate the First Amendment to the U.S. Constitution by unduly burdening protected political speech and association, the Fourteenth Amendment by denying equal protection of the laws, and the Voting Rights Act, 42 U.S.C. § 1973.³ The challenged provisions (1) reduce below the generally-applicable campaign contribution limits the amounts that people who have business dealings with the City, including lobbyists, can contribute to political campaigns, N.Y.C. Admin. Code § 3–703(1–a) (for candidates who participate in the City's optional public financing program, set forth in N.Y.C. Admin. Code § 3–703 (“participating candidates”)), 3–719(2)(b) (for candidates who do not participate in this program (“non-participating candidates”)); (2) deny matching funds for contributions by people who have business dealings with the City and certain people associated with lobbyists, N.Y.C. Admin. Code §§ 3–702(3), 3–703(1–a); and (3) extend the existing prohibition on corporate contributions to partnerships, LLCs, and LLPs, N.Y.C. Admin. Code §§ 3–703(1)( l ) (for participating candidates), 3–719(2)(b) (for non-participating candidates). Appellants argue, inter alia, that the lack of evidence of actual pay-to-play corruption in City politics means that there is no legitimate interest to be protected; that the regular contribution limits already in place sufficiently address any possible interest in reducing actual or perceived corruption; and that Citizens United v. Federal Election Commission, ––– U.S. ––––, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010), prohibits all contribution limits based on the source's identity. The district court rejected appellants' arguments and dismissed the claims on summary judgment.⁴ We affirm as to all three provisions, finding that the laws are closely drawn to address the significant governmental interest in reducing corruption or the appearance thereof.

I. Facts

In 1988, after a recent wave of local scandals, the New York City Council passed the Campaign Finance Act (“CFA”), establishing the Campaign Finance Program (“Program”). (A–819.) The Campaign Finance Board (“Board”) administers the Program and provides public matching funds to candidates running for the three citywide offices of Mayor, Comptroller, and Public Advocate; the five offices of Borough President; and the fifty-two offices of the City Council. The CFA imposes certain obligations on all candidates, including the filing of financial disclosure statements reporting contributions and expenditures, limitations on the amount of contributions from any single donor, and the obligation to respond to the Board's requests to verify compliance with the Program. N.Y.C. Admin. Code § 3–701, et seq. The CFA also limits per-person contributions for all covered elections in a single calendar year to $4,950 for Mayor, Comptroller, or Public Advocate; $3,850 for Borough President; and $2,750 for City Council.⁵ Id. § 3–703(1)(f).

Additionally, 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. A participating candidate's campaign receives public matching funds for all eligible individual private contributions from 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. §§ 3–703, 3–705(1), (2). Contributions from organizations, however, including unions and Political Action Committees (“PACs”), are not eligible for matching. Id. § 3–702(3).

In 1998, the New York City Charter Revisions Commission (“Commission”) sought to resolve problems that the existing law did not address. (A–314–A–316.) It proposed, and the City's voters passed by referendum, a Charter amendment that directed the Board to prohibit corporate contributions for all participating candidates; required these candidates to disclose contributions from individuals and organizations doing business with the City; and directed the Board to promulgate rules fleshing out these “doing business” limitations. N.Y.C. Charter §§ 1052(a)(11), (a)(12)(a). In its recommendation, the Commission identified concerns about contractor and lobbyist contributions, but noted the lack of evidence that such contributions had actually influenced the award of a particular contract or passage of a bill. Report of the New York City Charter Revision Commission 12–13 (Aug. 20, 1998) (“1998 Commission Report”). Nevertheless, the Commission concluded that there was “no doubt that these contributions have a negative impact on the public because they promote the perception that one must ‘pay to play.’ ” Id. at 19. The City Council later enacted a separate ban on corporate contributions to all candidates, including non-participating candidates. N.Y.C. Admin. Code § 3–703(1)( l ).

In 2006, after several public hearings and studies, the Board reported that over twenty percent of the contributions in the 2001 and 2005 election cycles were from individuals and entities doing business with the City, who comprised less than six percent of contributors, and that large contributions were more likely than small contributions to come from such donors. N.Y.C. Campaign Fin. Bd., Interim Report on “Doing Business” Contributions 12, 13 (June 19, 2006) (“Interim Report”). In addition, incumbents—considered to have greater influence on city decisions—were more likely to receive these large donations than challengers. N.Y.C. Campaign Fin. Bd., Public Dollars for the Public Good: A Report on the 2005 Elections 122 (2006) (“2005 Election Report”). In order to improve the CFA, the Board recommended banning all organizational contributions (including partnerships, LLCs, PACs, and unions) and regulating contributions by individuals and entities doing business with the City. 2005 Election Report, 120, 122.

That year, the City passed Local Laws 15 and 17, which created a mandatory electronic filing system for lobbyists; required full lobbyist disclosure of all fundraising and consulting activities; banned all gifts from lobbyists to City Officials; and excluded contributions from lobbyists and the individuals identified on their statements of registration from the definition of “matchable contribution.” N.Y.C. Admin. Code §§ 3–213, 3–216.1, 3–225, 3–702(3)(g). This latter category of exclusions includes the lobbyist's spouse or domestic partner and, if the lobbyist is an organization, any officer or employee who engages in lobbying...