131030 SRCC Subpoena Quash Memo

7/27/2019 131030 SRCC Subpoena Quash Memo

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SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -NEW YORK STATE SENATE REPUBLICAN

CAMPAIGN COMMITTEE,

Petitioner,

- against -

COMMISSION TO INVESTIGATE PUBLIC

CORRUPTION,

Respondent.

x:

:

::

:

::

:

:

::

Index No. _____________E

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

MEMORANDUM OF LAW IN SUPPORT OF PETITION TO QUASH AND FOR A

PROTECTIVE ORDER

Michael Chertoff

Robert K. Kelner

COVINGTON & BURLING LLP1201 Pennsylvania Avenue

Washington, DC 10004

(202) 662-6000

Jennifer Farina

620 Eighth Avenue

New York, NY 10018(212) 841-1140

Attorneys for Petitioner New York State SenateRepublican Campaign Committee

ILED: NEW YORK COUNTY CLERK 10/29/2013 INDEX NO. 159965/

YSCEF DOC. NO. 11 RECEIVED NYSCEF: 10/29/


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TABLE OF CONTENTSPRELIMINARY STATEMENT .............................................................................................................. 1STATEMENT OF FACTS ..................................................................................................................... 1ARGUMENT ...................................................................................................................................... 6POINT I: THE COMMISSIONS SUBPOENA SHOULD BE QUASHED AND A

PROTECTIVE ORDER ISSUED DIRECTING THAT THE COMMITTEE

NEED NOT RESPOND TO IT. ......................................................................................... 6A. The Subpoena is Not a Valid Exercise of the Commissions Subpoena

Power. ..................................................................................................................... 7B. The Subpoena is Overbroad and Unduly Burdensome. .......................................... 8C. The Subpoena Unnecessarily Abridges the Committees First Amendment

Rights of Free Political Expression and Association. ............................................. 9D. The Subpoena is Tainted by Impermissible Partisan Bias. ................................... 15

CONCLUSION.................................................................................................................................. 19


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TABLE OF AUTHORITIES

Page(s)

Cases

303 W. 42nd St. Corp. v. Klein,

46 N.Y.2d 686 (1979) ..................................................................................................16, 17, 18

Avella v. Batt,

33 A.D.3d 77 (3d Dept 2006) .............................................................................................9, 11

Buckley v. Valeo,

424 U.S. 1 (1976) .............................................................................................................passim

California Democratic Party v. Lungren,919 F.Supp. 1397 (N.D. Cal. 1996) ...........................................................................................9

Carlisle v. Bennett,268 N.Y. 212 (1935) ..................................................................................................................6

City of Cleburne v. Cleburne Living Center,

473 U.S. 432 (1985) .................................................................................................................15

Clubside, Inc. v. Valentin,

468 F.3d 144 (2d Cir. 2006).....................................................................................................16

Colorado Republican Fed. Campaign Comm. v. FEC,

518 U.S. 604 (1996) .............................................................................................................9, 11

Commn on Lobbying v. Simmons,4 Misc. 3d 749 (Sup. Ct. Albany Co. 2004) ............................................................................. .9

Crowley Foods, Inc. v. Lefkowitz,75 A.D.2d 940 (3d Dept 1980) .................................................................................................6

FEC v. LaroucheCampaign,

817 F.2d 233 (2d Cir. 1987).....................................................................................................12

FEC v. Machinists Non-Partisan Political League,

655 F.2d 380 (D.C. Cir. 1981) .................................................................................................11

Golden v. Clark,

76 N.Y.2d 618 (1990) ..............................................................................................................15

Matter of Goverl Consulting Corp. v. New York Temporary State Commn on Lobbying,

113 A.D. 611 (3d Dept. 1986), revd for reasons stated in dissent, 68 N.Y.2d 839 (1986)......9

Green Party of Connecticut v. Garfield,616 F.3d 213 (2d Cir. 2010).....................................................................................................15


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Harlen Associates v. Inc. Vill. of Mineola,

273 F.3d 494 (2d Cir. 2001).........................................................................................15, 16, 18

Kalkstein v. DiNapoli,

170 Misc.2d 165 (Sup. Ct. Albany Co. 1996), affd in relevant part, 228 A.D.2d 28 ....6, 7, 13

Kalkstein v. DiNapoli,

228 A.D.2d 28 (3d Dept 1997) ...........................................................................................7, 10

Madole v. Barnes,20 N.Y.2d 169 (1967) ..............................................................................................................15

Myer v. Myer,271 A.D. 465 (1st Dept 1946), affd, 296 N.Y. 979, 73 N.E.2d 562 (1947) ..........................15

Myerson v. Lentini Bros. Moving & Stor. Co.,

33 N.Y.2d 250 (1973) ............................................................................................................6, 7

Natale v. Town of Ridgefield,

170 F.3d 258 (2d Cir. 1999).....................................................................................................15

New York Republican State Comm. v. New York State Commn on Govt Integrity,

138 Misc. 2d 790 (Sup. Ct. N.Y. Co. 1988), affd,140 A.D.2d 1014 (1st Dept 1988)13, 14, 18

Nicholson v. State Commn on Judicial Conduct,

50 N.Y.2d 597 (1980) ..............................................................................................................10

Nicholson v. State Commn on Judicial Conduct,68 A.D.2d 851 (1979) ................................................................................................................8

In re Office of Atty Gen. of State of New York,

269 A.D.2d 1 (1st Dept 2000) ..............................................................................................8, 9

Perry v. Schwarzenegger,

591 F.3d 1147 (9th Cir. 2010) .................................................................................................11

San Francisco County Democratic Cent. Comm. v. Eu,

826 F.2d 814 (9th Cir.1987), affd, 489 U.S. 214 (1989) ........................................................10

Tashjian v. Republican Party of Connecticut,

479 U.S. 208 (1986) ...................................................................................................................9

Vill. of Willowbrook v. Olech,528 U.S. 562 (2000) .................................................................................................................15

White Bay Enter., Ltd. v. Newsday, Inc.,288 A.D.2d 211 (2d Dept 2001) ...............................................................................................8


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Williams v. Rhodes,

393 U.S. 23 (1968) (Douglas, J., concurring) ..........................................................................15

Yick Wo v. Hopkins,

118 U.S. 356 (1886) .................................................................................................................15

Statutes

1988 N.Y. Sess. Law Serv. 71 .......................................................................................................14

CPLR 2304....................................................................................................................................1

CPLR 3103................................................................................................................................1, 8

N.Y. Elec. Law Art. 14 ..................................................................................................................13

N.Y. Elec. Law 2-100 ...................................................................................................................2

N.Y. Elec. Law 14-100 .................................................................................................................1

N.Y. Elec. Law 14-102 ...............................................................................................................14

N.Y. Elec. Law 14-124 ...........................................................................................................2, 14

N.Y. Exec. Law 6 ..........................................................................................................................2

N.Y. Exec. Law 63 ........................................................................................................................2

Constitutional Provisions

N.Y. Const. art. I, 6 ...............................................................................................................15, 17

N.Y. Const. art. I, 11 .............................................................................................................15, 17

U.S. Const. amend. I ..............................................................................................................passim

U.S Const. amend. XIV, 1 ....................................................................................................15, 17

Other Authorities

Executive Order (Gov. Andrew Cuomo) No. 106 .......................................................................2, 7


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Jesse McKinley & Thomas Kaplan, Cuomos Office Is Said to Rein In Ethics Board He Created,

N.Y. Times, Oct. 8, 2013 .....................................................................................................5, 17

Kenneth Lovett, Cuomos anti-corruption panel stops at investigating his own Democratic party,

N.Y. Daily News, Oct. 3, 2013 ............................................................................................5, 17

Kenneth Lovett, Gov. Cuomo leans on independent corruption panel, N.Y. Daily News, Sept.

30, 2013....................................................................................................................................17

Rules of the New York Republican State Committee (2011) ..........................................................2

Thomas Kaplan,Panel to Investigate State Democratic Party, N.Y. Times, Oct. 15, 2013 .....5, 18


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Petitioner New York State Senate Republican Campaign Committee (the

Committee) submits this memorandum in support of its petition pursuant to CPLR 2304 to

quash the September 20, 2013 subpoena duces tecum issued by the respondent Commission to

Investigate Public Corruption (the Commission), and for a protective order pursuant to CPLR

3103.

PRELIMINARY STATEMENT

The Commission has issued a far-reaching subpoena that demands production by

the Committee, a New York State political party committee, of its most sensitive internal

documents. The subpoena seeks documents and information that go to the heart of the

Committees political functions, and it reaches beyond the campaign finance-related information

that the Committee is already required by law to disclose. By issuing an overbroad and

burdensome subpoena without sufficient justification, and in a manner that strongly suggests

partisan bias, the Commission both disrupts the careful balance struck by the States existing

campaign finance disclosure regime and infringes deeply upon the Committees rights to free

political expression and association. Moreover, because the rules and procedures governing the

Commissions exercise of its powers remain shrouded in mystery, the Commission has exceeded

its own lawful authority to issue the subpoena. To protect the Committees fundamental rights

under the United States and New York State Constitutions against the partisan use of state

power, the Committee requests that the Court quash the subpoena and issue a protective order

directing that the Committee need not respond to the subpoenas remaining demands.

STATEMENT OF FACTS

The Committee is the campaign arm of the Republican members of the New York

State Senate. Affidavit of Judy Crane, 3. It is a party committee, as defined in N.Y. Elec.


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Law 14-100 (McKinney) and provided for by N.Y. Elec. Law 2-100 (McKinney). Id., 3

and Exhibit 1 (Rules of the New York Republican State Committee (2011), also available at

http://www.wnyrepublicans.com/1/nys-committee-rules.pdf). Its housekeeping account is a

segregated account comprising monies received and expenditures made to maintain a

permanent headquarters and staff and carry on ordinary activities which are not for the express

purpose of promoting the candidacy of specific candidates. N.Y. Elec. Law 14-124(3)

(McKinney); Affidavit of Judy Crane, 6-7. The Committees housekeeping account is an

administrative arrangement. It is not a separate legal entity or otherwise separable from the

Committee as a whole. Affidavit of Judy Crane, 7.

The Commission was appointed by Governor Andrew Cuomo on July 2, 2013,

pursuant to N.Y. Exec. Law 6 (McKinney) (Moreland Act) and N.Y. Exec. Law 63

(McKinney). See Executive Order (Gov. Andrew Cuomo) No. 106. Governor Cuomos

Executive Order instructed this Moreland Commission to [i]nvestigate the State Board of

Elections, Exec. Order 106 II(a), [i]nvestigate weaknesses in existing laws, regulations and

procedures relating to the regulation of lobbying, id. at II(b), and [i]nvestigate weaknesses in

existing laws, regulations and procedures relating to addressing public corruption, conflicts of

interest, and ethics in State Government. Id. at II(c). The Executive Order gave the

Commissioners powers to subpoena, id. at V, but only if the Co-Chairpersons

unanimously approve any subpoena prior to its issuance, id. at V(1), and only if the Co-

Chairpersons unanimously approve such procedures and rules as they believe necessary to

govern the exercise of the powers and authority given or granted to the Commissioners . . . ,

including rules designed to provide transparency while protecting the integrity of the

investigation and rights to privacy. Id. at V(2).


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On September 20, 2013, the Committee received a subpoena duces tecum (the

Subpoena) from the Commission demanding extensive information about the Committees

internal communications and housekeeping account. Affirmation of Michael Chertoff, 2-3

and Exhibit 1 (Subpoena). The Subpoena was directed to New York Senate Republican

Campaign Committee-Housekeeping (SRH), despite the fact that housekeeping is not a

separate entity from the Committee as a whole. Id.; Affidavit of Judy Crane, 6-7. The

Subpoena broadly defined SRH to mean NEW YORK SENATE REPUBLICAN

CAMPAIGN COMMITTEE-HOUSEKEEPING. [sic] and all its principals, executives,

representatives, agents, affiliates, present or former parents, subsidiaries, related entities,

directors, officers, chairs, partners, principals, owners, supervisors, employees, agents,

representatives, contractors, attorneys or other persons acting on its behalf, its respective

predecessors or successors or any of the affiliates of the foregoing. Affirmation of Michael

Chertoff, Exhibit 1 (Subpoena), at 2.

The Subpoena demanded that the Committee produce the following documents in

unredacted form,see Affirmation of Michael Chertoff, Exhibit 1 (Subpoena), at 3, for the time

period January 1, 2012, to the present:

(1) An organizational chart of SRHs operations, a list of SRHs full-time

employees and the titles and job responsibilities of such employees,

(2) Documents relating to financial transactions, including contributions received

and made, transfers (in and out), receipts, expenditures, and expenses,

(3) Documents sufficient to identify all expenditures related to the maintenance

of a permanent party headquarters and payment of permanent staff,


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(4) Documents and Communications relating to the 2012 New York State Senate

elections (Elections), including Documents and Communications involving any public official,

political candidate, political entity, political campaign, political action committee, political

committee, or political party organization; including the NEW YORK STATE

INDEPENDENCE PARTY HOUSEKEEPING ACCOUNT (IPH),

(5) Documents and Communications involving or relating to IPH, including

discussions about the Elections,

(6) Documents and Communications involving the production or proposed

production of any media materials, including television or print advertisements or mailers,

including by DIGITAL X-PRESS and by STRATEGIC MEDIA PLACEMENT, and including

the production of materials for the Elections,

(7) Materials created for SRH (directly or indirectly) or for IPH by DIGITAL X-

PRESS, and

(8) Materials created for SRH (directly or indirectly) or for IPH by STRATEGIC

MEDIA PLACEMENT. Affirmation of Michael Chertoff, Exhibit 1 (Subpoena), at 6.


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Because the Committees housekeeping account is simply an administrative

account, and not a separate entity with a distinct staff or structure, these requests potentially call

for production of all of the Committees internal and external communications regarding the

2012 election. See Affidavit of Judy Crane, 6-7.

According to media reports, the Commission initially sought documents from the

Committee and the New York State Independence Party,1

and possibly the New York State

Democratic Senate Campaign Committee.2

But the Commission reportedly agreed to subpoena

the New York State Democratic Committeewhich has its own housekeeping account and,

significantly, is the party committee most closely associated with the Executiveonly after the

Executives involvement in the Commissions operations became public, leading to public

condemnation of the Commissions partisan nature.3

As of this date, there is no public evidence

that the Commission has in fact issued a subpoena to the New York State Democratic

Committee.

After the Commission granted the Committees request for an extension of the

return date for the Subpoena to October 30, 2013, the Committee made a targeted production of

documents that responded to the Subpoenas demands 1 and 3 for, respectively, organizational

information about the SRH (which, because the housekeeping account is not a separate entity,

was information about the Committees organization) and a log of the housekeeping accounts

1See Jesse McKinley & Thomas Kaplan, Cuomos Office Is Said to Rein In Ethics Board He

Created, N.Y. Times, Oct. 8, 2013, http://www.nytimes.com/2013/10/08/nyregion/cuomos-

office-is-said-to-rein-in-ethics-board-he-created.html.2

Kenneth Lovett, Cuomos anti-corruption panel stops at investigating his own Democraticparty, N.Y. Daily News, Oct. 3, 2013, http://www.nydailynews.com/news/politics/cuomo-anti-corruption-panel-won-probe-party-article-1.1474800.3See Thomas Kaplan,Panel to Investigate State Democratic Party, N.Y. Times, Oct. 15, 2013,

http://www.nytimes.com/2013/10/16/nyregion/panel-to-investigate-state-democratic-party.html.


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expenditures, which the Committee was already required by law to disclose to the New York

State Board of Elections (SBOE). Affirmation of Michael Chertoff, 2-5; Affidavit of Judy

Crane, 8. On October 21, 2013, the Committee sent a letter to the Commission requesting that

the Subpoena be withdrawn. Affirmation of Michael Chertoff, 6 and Exhibit 2 (letter). The

Commission responded by letter on October 29, 2013, declining to withdraw the Subpoena.

Affirmation of Michael Chertoff, 7-8 and Exhibit 3 (response letter).

ARGUMENT

POINT I:THE COMMISSIONS SUBPOENA SHOULD BE QUASHED AND A PROTECTIVE

ORDER ISSUED DIRECTING THAT THE COMMITTEE NEED NOT RESPOND TO IT.

The subpoena power of state bodies is not without limit and must be exercised

with great care, especially when it is levied against political organizations and aimed at

discovering core political speech. There are limits upon the power of public officials authorized

to issue subpoenas. Kalkstein v. DiNapoli, 170 Misc.2d 165, 170 (Sup. Ct. Albany Co. 1996),

affd in relevant part, 228 A.D.2d 28 (quotingMyerson v. Lentini Bros. Moving & Stor. Co., 33

N.Y.2d 250, 256 (1973)) (hereinafterKalkstein I). The New York State Court of Appeals has

emphasized that the statutory authorization to issue subpoenas would not be construed to allow

[a public official] to embark upon a roving course to pry into the affairs of any person.

Myerson, 33 N.Y.2d at 256 (citing Carlisle v. Bennett, 268 N.Y. 212, 217-18 (1935)).

Accordingly, parties who are subject to a non-judicial subpoena duces tecum may

always challenge the subpoena in court on the ground it calls for irrelevant or immaterial

documents or subjects the witness to harassment. Kalkstein I, 170 Misc.2d at 171 (quoting

Myerson, 33 N.Y.2d at 256). An agency issuing a nonjudicial subpoena must show its

authority, the relevancy of the items sought and some factual basis for inquisitorial action. Id.

at 170 (quoting Crowley Foods, Inc. v. Lefkowitz, 75 A.D.2d 940, 941 (3d Dept 1980), citing


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Myerson, 33 N.Y.2d 250). Commissions are bound by these principles even if their purpose is

not to uncover wrongdoing with respect to current law, but to determin[e] the necessity for

new laws[.] Id. at 171.

Where the material requested implicates the targets right of free political

association, the burden to defend the subpoena is even higher: [T]he governments quest for

information is precluded unless it shows that there are governmental interests sufficiently

important to outweigh the possibility of infringement of 1st Amendment rights. Kalkstein v.

DiNapoli, 228 A.D.2d 28, 31 (3d Dept 1997) (quotingBuckley v. Valeo, 424 U.S. 1, 66 (1976))

(internal brackets omitted) (hereinafterKalkstein II);see U.S. Const. amend. I.

Here, the Subpoena should be quashed and a protective order issued because the

Subpoena results from an improper exercise of the Commissions subpoena power; is overbroad

and burdensome; infringes upon the Committees rights of free political expression and

association; and reflects that the Commission is operating in a partisan manner that is prejudicial

to the Committee and therefore subjects the [Committee] to harassment. Kalkstein I, 170

Misc.2d at 171.

A. The Subpoena is Not a Valid Exercise of the Commissions Subpoena Power.The Subpoena should be quashed because the Commission lacks the authority to

issue it. The Executive Order establishing the Commission requires it to unanimously adopt

rules designed to provide transparency while protecting the integrity of the investigation and

rights to privacy. Executive Order (Gov. Andrew Cuomo) No. 106 (V)(2). Promulgation of

those rules is a predicate to the Commissions subpoena power. The Commission does not

appear to have promulgated the necessary procedures and rules to govern the exercise of the

powers and authority given or granted to the Commissioners. Id. The Committee has requested

that the Commission make available its procedures and rules. Affirmation of Michael Chertoff,


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6 (letter) and Exhibit 2. The Commission has met this request with silence. Absent any public

indication that the Commission had, prior to issuing the Subpoena, adopted rules and procedures

adequate to protect the integrity of the Commissions investigation and the privacy interests of

subpoenaed parties, as required by the Governors Executive Order, the Subpoena is invalid. See

Nicholson v. State Commn on Judicial Conduct, 68 A.D.2d 851, 852 (1979) (granting motion to

quash subpoena regarding certain requests because of Commissions failure to follow predicate

statutory procedures as to those requests).

B. The Subpoena is Overbroad and Unduly Burdensome.Subpoenas that are overbroad and unduly burdensome are unenforceable. White

Bay Enter., Ltd. v. Newsday, Inc., 288 A.D.2d 211, 212 (2d Dept 2001) (quashing subpoenas

that were overly broad and unduly burdensome);see also CPLR 3103. [A] subpoena

should be quashed when the materials sought are, in fact, irrelevant to a legitimate subject of

inquiry, or when the subpoena is being used for a fishing expedition to ascertain the existence of

evidence. In re Office of Atty Gen. of State of New York, 269 A.D.2d 1, 12-13 (1st Dept 2000)

(citations omitted).

The Subpoena at issue here includes requests for all financial records, and for all

Documents and Communications relating to the 2012 New York State Senate elections. See

Affirmation of Michael Chertoff, Exhibit 1 (Subpoena) at 6. These requests are sweepingly

broad. New York State Senate elections are the very purpose of the Committees existence.

Affidavit of Judy Crane, 4. Consequently, the Subpoena potentially demands allof the

Committees paper and electronic documents and communications over a nearly two-year period,

including an election year. Complying with these requests would be acutely burdensome.

The Committee has already produced to the Commission or publicly provides to

the SBOE reports of all of its financial transactions. Affirmation of Michael Chertoff, 5;


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Affidavit of Judy Crane, 8. The Commission has no factual basis for asserting that the

voluminous additional materials it seeks are relevant to the investigation, and has made no

meaningful effort to ensure that the Subpoena was closely drawn. Even if the Commission were

within its authority to issue the Subpoena, which it is not, no agency of government may

conduct an unlimited and general inquisition into the affairs of persons within its jurisdiction

solely on the prospect of possible violations of law being discovered, especially with respect to

subpoenas duces tecum. See Matter of Goverl Consulting Corp. v. New York Temporary State

Commn on Lobbying, 113 A.D. 611, 614-615 (3d Dept. 1986) (Mahoney, P.J., dissenting), revd

for reasons stated in dissent, 68 N.Y.2d 839, 841 (1986) (internal quotation omitted);see also,

e.g., Commn on Lobbying v. Simmons, 4 Misc. 3d 749, 754 (Sup. Ct. Albany Co. 2004)

(quashing subpoenas when state commission had demonstrated neither the relevance of nor a

basis for the inquisition into financial records). If the Subpoena is enforced, it would allow

the Commission to conduct an unbounded fishing expedition into the Committees political

activities. In re Office of Atty Gen. of State of New York, 269 A.D.2d at 13.

C. The Subpoena Unnecessarily Abridges the Committees First AmendmentRights of Free Political Expression and Association.

The Commissions demands for documents reflecting the Committees internal

strategic communications violate the Committees fundamental First Amendment rights. The

First Amendment, U.S. Const. amend. I., protects the free expression and association rights of

political party organizations. Avella v. Batt, 33 A.D.3d 77, 83 (3d Dept 2006) (citing Colorado

Republican Fed. Campaign Comm. v. FEC, 518 U.S. 604, 615-16 (1996)); Tashjian v.

Republican Party of Connecticut, 479 U.S. 208, 214 (1986);Buckley, 424 U.S. at 15; California

Democratic Party v. Lungren, 919 F.Supp. 1397, 1400 (N.D. Cal. 1996) (Because individuals

exercise their free speech rights by participating in political parties, political parties also possess


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First Amendment rights.) (citing San Francisco County Democratic Cent. Comm. v. Eu, 826

F.2d 814, 818 (9th Cir.1987), affd, 489 U.S. 214 (1989)).

Subpoenas that demand the records of a political organization tread[] on the right

of political association which is protected by the 1st Amendment. Kalkstein IIat 30. Because

of this potential interference with fundamental rights, the governments quest for information is

precluded unless it shows that there are governmental interests sufficiently important to

outweigh the possibility of infringement of 1st Amendment rights. Id. at 31 (quotingBuckley,

424 U.S. at 66);see alsoNicholson v. State Commn on Judicial Conduct, 50 N.Y.2d 597, 607

(1980) (A proper analysis of interference with First Amendment rights calls for examination

of the degree of interference with the First Amendment interests, the strength of the

governmental interest justifying the restriction and the means chosen to prevent the asserted

evil). The Commissions Subpoena should be quashed because the degree of interference with

the Committees First Amendment rights outweighs the slight interest, if any, that the

Commission may have in the vast array of internal Committee documents and communications

sought by the Subpoena. This is especially so in light of the fact that there is no allegation of

unlawful conduct by the Committee.

As noted above, the Commissions broad Subpoena requests potentially cover all

of the Committees paper and electronic documents and communications over a nearly two-year

period. In particular, the Subpoenas request for Documents and Communications relating to

the 2012 New York State Senate elections would compel the Committee to produce its most

sensitive documents and communications related to political strategies, goals, and plans during

an election year. These documents and communications contain internal deliberations related to

the Committees public activities, including public advertisements, issue-based advocacy, and


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other political expenditures. A separate Subpoena request specifically demands all Documents

and Communications involving the production or proposed production of any media materials,

including television or print advertisements or mailers . Such media materials are the core

means of political expression for a modern political party. The Commissions demands therefore

strike at the very heart of the First Amendments protections for political speech and association.

As the United States Supreme Court has emphasized:

A political partys independent expression not only reflects itsmembers views about the philosophical and governmental matters

that bind them together, it also seeks to convince others to join

those members in a practical democratic task, the task of creating a

government that voters can instruct and hold responsible forsubsequent success or failure. The independent expression of a

political partys views is core First Amendment activity no lessthan is the independent expression of individuals, candidates, or

other political committees.

Colorado Republican Fed. Campaign Comm., 518 U.S. at 615616 (quoted inBatt, 33 A.D. 3d

at 83).

If the Committee is required to turn over to the Commission all of its documents

and communications related to the 2012 election, as well as all of its documents and

communications related to the Committees television or print advertisementstwo of several

far-reaching requeststhe Committees exercise of its right to free political expression and

association, and that of other political party committees in New York State, would be chilled.

See Perry v. Schwarzenegger, 591 F.3d 1147, 1162 (9th Cir. 2010) (stating that the court had

little difficulty concluding that disclosure of internal campaign communications could have a

chilling effect on the exercise of protected activities, because disclosure of such information

can have a deterrent effect on participation in campaigns and can have a deterrent effect on the

free flow of information within campaigns, which is [i]mplicit in the right to associate with

others to advance ones shared political beliefs);FEC v. Machinists Non-Partisan Political


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League, 655 F.2d 380, 388 (D.C. Cir. 1981) (release of such information to the government

carries with it a real potential for chilling the free exercise of political speech and association

guarded by the first amendment). Exposing sensitive political strategies related to state races,

as well as the Committees private discussions on the strengths and weaknesses of particular

candidates or political issues, would discourage political party committees from engaging in free

internal discussions in the future.

In contrast to the high degree of interference with the Committees First

Amendment interests, the Commissions interest in collecting the Committees internal

communications and records is slight. There is no factual basis for the Commissions demands,

nor are there any allegations of unlawful activity by the Committee. When such [First

Amendment] concerns appear, an administrative agency is not automatically entitled to obtain all

material that may in some way be relevant to a proper investigation. Rather, where the disclosure

sought will compromise the privacy of individual political associations, and hence risks a

chilling of unencumbered associational choices, the agency must make some showing of need for

the material sought beyond its mere relevance to a proper investigation. FEC v. Larouche

Campaign, 817 F.2d 233, 234 -235 (2d Cir. 1987). While the Commission may disapprove of

the fact that New York law allows political party committees to operate housekeeping accounts

that are not subject to contribution limits, disapproval of existing law is not an adequate basis for

intruding deeply into the most sensitive political communications of a political party.

In addition to lacking a sufficient interest in the requested documents and

communications, it is apparent from the sheer breadth of the Subpoena that the Commission has

not attempted to employ[] means closely drawn to avoid unnecessary abridgment of

associational freedoms. Buckley, 424 U.S. at 25. In adopting and fine-tuning New Yorks


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campaign finance disclosure laws, the State has previously weighed its interest in preventing

corruption against the need for compelled disclosure of political activities. It has struck a careful

legislative balance, under which political party committees must report all receipts and

expenditures of their housekeeping accounts to the SBOE, but need not disclose their internal

deliberations. The Commissions Subpoena would upset this balance by compelling production

of a political party committees most sensitive, internal political communications and records

without due cause. SeeKalkstein I, at 168, 171-72 (committees purpose of determining

whether existing election, ethics and related laws and regulations relating to the activities of

[the subpoena target] are adequate to protect the public interest was fully satisfied by the

petitioners furnishing respondents the names of contributors, the respective amounts

contributed, and where and for what such contributions were spent).

Although a quarter century ago, a court did enforce a subpoena for housekeeping

account documents against the New York Republican State Committee, rejecting First

Amendment objections, that case is distinguishable in several significant respects. New York

Republican State Comm. v. New York State Commn on Govt Integrity, 138 Misc. 2d 790 (Sup.

Ct. N.Y. Co. 1988), affd,140 A.D.2d 1014 (1st Dept 1988).

First, in that case, in which the New York State Commission on Government

Integrity requested records of the party committees housekeeping account receipts and

expenditures, the subpoena was limited to those records. The Court noted that it fail[ed] to see

how limited disclosure of the petitioners housekeeping finances will have a chilling effect on

any persons First Amendment rights, in light of the disclosure requirements already in effect

pursuant to Election Law Art. 14. Id. at 798 (emphasis added). The Subpoena at issue in this


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case, in contrast, sweeps far more broadly and includes demands for internal and external

communications regarding the entire 2012 election.

Second, at the time theNew York Republican State Committee case was decided,

New York States campaign finance law did not yet require disclosure of housekeeping account

receipts and expenditures. Today, housekeeping accounts are subject to detailed reporting

requirements. See N.Y. Elec. Law 14-102, 14-124(3) (2012) (exempting housekeeping

accounts from contribution and receipt limits, but not reporting requirements); 1988 N.Y. Sess.

Law Serv. 71 (McKinney) (amending the financial disclosure law to remove the disclosure

exception for housekeeping accounts). In amending its campaign finance law, the State has now

specifically addressed the role of housekeeping accounts and struck a balance between the need

to require disclosure of housekeeping account financial transactions and the countervailing need

to avoid undue intrusion into the internal activities and deliberations of a political party

committee. Unlike the subpoena at issue inNew York Republican State Committee, the

Subpoena here would compel disclosure that the State expressly chose not to require when it

adopted its housekeeping account disclosure requirements. Moreover, because housekeeping

accounts are already required to disclose publicly from whom they raise funds and to whom they

make expenditures, the Commission does not now have the same interest, claimed by the

Commission inNew York Republican State Committee, in obtaining discovery to investigate the

use of housekeeping accounts. Detailed information concerning housekeeping account receipts

and expenditures is readily available to the Commission from public sources.

For all of these reasons, the Subpoena will cause significant and unwarranted

interference with the Committees free speech and association rights and should be quashed, and

a protective order issued stating that the Committee need not produce the materials.


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D. The Subpoena is Tainted by Impermissible Partisan Bias.Political parties are embraced by the protections of the Fourteenth Amendment,

U.S Const. amend. XIV, 1,see,e.g.,Green Party of Connecticut v. Garfield, 616 F.3d 213,

224-228 (2d Cir. 2010), and are likewise guaranteed fair treatment under the law by the New

York State constitution,see, e.g.,Madole v. Barnes, 20 N.Y.2d 169, 173 (1967); N.Y. Const. art.

I, 6; N.Y. Const. art. I, 11;see also Golden v. Clark, 76 N.Y.2d 618, 624 (1990) (noting that

the New York State Constitutions equal protection guarantee is as broad in its coverage as that

of the Fourteenth Amendment).

The essence of the right to equal protection of the laws is that all persons

similarly situated be treated alike. Madole, 20 N.Y.2d at 173 (quotingMyer v. Myer, 271 A.D.

465, 472 (1st Dept 1946), affd, 296 N.Y. 979, 73 N.E.2d 562 (1947)). In other words, the

Fourteenth Amendments Equal Protection clause generally prohibits state governments from

treating groups differently based on arbitrary or irrational distinctions. See, e.g., City of

Cleburne v. Cleburne Living Center, 473 U.S. 432, 446-47 (1985). Discrimination on the basis

of political association is generally invidious. See Williams v. Rhodes, 393 U.S. 23, 39 (1968)

(Douglas, J., concurring). Furthermore, the Due Process clause prohibits conduct that is so

outrageously arbitrary as to constitute a gross abuse of governmental authority. Harlen

Associates v. Inc. Vill. of Mineola, 273 F.3d 494, 505 (2d Cir. 2001) (quotingNatale v. Town of

Ridgefield, 170 F.3d 258, 263 (2d Cir. 1999)).

These principles prohibit the government from selective enforcement of the law.

See, e.g., Yick Wo v. Hopkins, 118 U.S. 356 (1886). It is the purpose of the equal protection

clause of the Fourteenth Amendment to secure every person within the States jurisdiction

against intentional and arbitrary discrimination, whether occasioned by express terms of a statute

or by its improper execution through duly constituted agents. Vill. of Willowbrook v. Olech,


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528 U.S. 562, 564 (2000) (internal quotation and modifications omitted). To demonstrate

unconstitutional disparate treatment, a party must show either (1) that [it was] treated differently

from other similarly situated individuals, and (2) that such differential treatment was based on

impermissible considerations such as intent to inhibit or punish the exercise of constitutional

rights, or malicious or bad faith intent to injure a person, see Harlen Associates, 273 F. 3d at

499 (internal quotations omitted), or that no rational person could regard the circumstances of

the plaintiff to differ from those of a comparator to a degree that would justify the differential

treatment on the basis of a legitimate government policy and the similarity in circumstances

and difference in treatment are sufficient to exclude the possibility that the defendants acted on

the basis of a mistake. Clubside, Inc. v. Valentin, 468 F.3d 144, 159 (2d Cir. 2006) (internal

quotation omitted).

As the New York Court of Appeals has stated, [p]roof of intent may appear

from a convincing showing of a grossly disproportionate incidence of nonenforcement against

others similarly situated in all relevant respects save for that which furnishes the basis of the

claimed discrimination. 303 W. 42nd St. Corp. v. Klein, 46 N.Y.2d 686, 695 (1979). This is

necessarily the case because [o]rdinarily . . . a strong inference of illicit motive will be all that

can be expected because admission of intentional discrimination is likely to be rare; law

enforcement officials are unlikely to avow that their intent was to practice constitutionally

proscribed discrimination. Id. Indeed, the grosser the disparity of enforcement and the

greater the similarity between those prosecuted and those not prosecutedthe stronger will be

the inference of illicit motive, since conscious discrimination may then stand out as the only

reasonable explanation for the pattern of enforcement. Id. And because the importance of the

right to be free from impermissible selective enforcement must be of more than theoretical value,


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the burden of demonstrating a violation, albeit heavy, must not be so heavy as to preclude any

realistic opportunity for success. Id.

These tenets regarding selective enforcement are equally applicable here, where

there is a selective exercise of the governments investigative power. Media accounts of the

Commissions investigation raise substantial concerns that its demand for documents is

politically motivated and violates the Equal Protection and Due Process Clauses of the

Fourteenth Amendment and the New York State Constitution. The news reports detail several

incidents suggesting that the Committee is receiving disfavored treatment relative to other

similarly situated political party committees.

4

According to media reports, the Executive has exerted significant influence over

the conduct of the Commissions investigation, including ordering the Commission to drop plans

to subpoena documents from the New York State Democratic Committee,5

the party committee

with which the Executive is most intimately involved, and from other interests connected to the

Executive.6

Indeed, it appears that the Commission initially sought documents from the

Committee and the New York State Independence Party,7 and possibly the New York State

Democratic Senate Campaign Committee,8

but reportedly agreed to subpoena the New York

State Democratic Committee only after the Executives involvement in the Commissions

4See, e.g., Cuomos anti-corruption panel stops at investigating his own Democratic party,

supra n.2; Cuomos Office Is Said to Rein In Ethics Board He Created, supra n.1.5

See Cuomos anti-corruption panel stops at investigating his own Democratic party,supra n.2.6See Kenneth Lovett, Gov. Cuomo leans on independent corruption panel, N.Y. Daily News,

Sept. 30, 2013, http://www.nydailynews.com/news/politics/gov-cuomo-leans-independent-corruption-panel-article-1.1471258.7SeeCuomos Office Is Said to Rein In Ethics Board He Created,supra n.1.

8Cuomos anti-corruption panel stops at investigating his own Democratic party,supra n.2.


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operations became a matter of public controversy.9

Moreover, as of this date, there is no public

evidence that the Commission has in fact issued a subpoena to the New York State Democratic

Committee. These media reports suggest that the Commissions Subpoena to the Committee

might not have been issued in good faith. They also raise serious questions concerning whether

the Commission intends to prosecute all of its outstanding subpoenas with equal vigor. Compare

New York State Commn on Govt Integrity, 138 Misc. 2d 790 (where[i]dentical subpoenas

were issued to five Democratic Party committees, there was no merit to the petitioners claim

that the subpoenas were issued in bad faith as a means to harass the Republican Party).

The Executives undue influence over the Commission, and the Commissions

delay in issuing a subpoena to the key Democratic Party committee with which the Executive is

closely involved, create a strong inference that the Subpoena reflects an arbitrary exercise of

government power, and one in which the Commission has treated the Committee differently than

other similarly-situated entities based on irrational, arbitrary, or impermissible motives. See 303

W. 42nd St. Corp., 46 N.Y.2d at 695;Harlen Associates, 273 F. 3d at 499. The Subpoena thus

violates the Committees Equal Protection and Due Process rights, and for this reason too should

be quashed.

9See Panel to Investigate State Democratic Party,supra n.3.


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CONCLUSION

For the foregoing reasons, the New York State Senate Republican Campaign

Committee requests that the Court quash Respondents subpoena duces tecum dated September

20, 2013 and issue a protective order directing that the Committee need not produce the materials

requested by it.

Dated: October 29, 2013Washington, DC

Respectfully,

COVINGTON & BURLING LLP

By: /s/ Michael Chertoff_______

Michael ChertoffRobert K. Kelner

1201 Pennsylvania Avenue

Washington, DC 10004(202) 662-6000

Jennifer Farina620 Eighth Avenue

New York, NY 10018

(212) 841-1140

Attorneys for Petitioner New York State Senate

Republican Campaign Committee