2014-03-17 New York Progress and Protection PAC - Defs Memo of Law Opposing MSJ (53)

8/12/2019 2014-03-17 New York Progress and Protection PAC - Defs Memo of Law Opposing MSJ (53)

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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

NEW YORK PROGRESS ANDPROTECTION PAC,

Plaintiff,- against -

JAMES A. WALSH, in his official capacity asCo-Chair of the New York State Board ofElections, et al.,

Defendants,

- and -

ERIC T. SCHNEIDERMAN, AttorneyGeneral of the State of New York,

Intervenor-Defendant.

No. 13 Civ. 6769 (PAC)

ORAL ARGUMENT REQUESTED

MEMORANDUM OF LAW

OF THE ATTORNEY GENERAL OF THE STATE OF NEW YORK

AND COMISSIONERS JAMES A. WALSH,

DOUGLAS A. KELLNER, AND GREGORY P. PETERSONIN OPPOSITION TO PLAINTIFFS MOTION

FOR SUMMARY JUDGMENT

JOHN M.SCHWARTZJANE GOLDBERGJOSHUA PEPPEREVA DIETZAssistant Attorneys General

BRIAN A.SUTHERLANDAssistant Solicitor Generalof counsel

ERIC T.SCHNEIDERMANAttorney General

State of New York120 BroadwayNew York, New York 10271

March 17, 2014

Case 1:13-cv-06769-PAC Document 53 Filed 03/17/14 Page 1 of 31


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TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .......................................................................................................... ii

PRELIMINARY STATEMENT .....................................................................................................1STATEMENT OF FACTS ..............................................................................................................3

A.New Yorks Limit on Contributions to Political Committees ........................................3B.The Rise of Federal Super PACs as De Facto Party or Candidate Committees .............4C.The Vulnerability of New York to Super PACs .............................................................7D.New York Progress and Protection PAC ........................................................................7

ARGUMENT ...................................................................................................................................9I. CONTRIBUTION LIMITS ARE CONSISTENTLY UPHELD AS APPROPRIATE

MEASURES TO GUARD AGAINST RISKS OF CORRUPTION AND THEAPPEARANCE OF CORRUPTION IN GOVERNMENT. ...............................................9

II. THE CONSTITUTION DOES NOT REQUIRE A CARVE-OUT FROM NEWYORKS CONTRIBUTION LIMIT FOR CONTRIBUTIONS TO SUPER PACS. ........11A.Plaintiffs Reliance on Citizens UnitedIs Misplaced Because That Decision

Does Not Address a Contribution Limit. .......................................................................12B.Plaintiff Is Incorrect in Arguing That Allowing Unlimited Contributions to

Super PACs Would Present No Risk of Corruption or the Appearance ofCorruption. ....................................................................................................................141. The Super PAC carve-out sought by plaintiff would lead operatives to

organize Super PACs in New York to simulate candidate or partycommittees as closely as possible. .........................................................................14

2. Large contributions to Super PACs create a substantial risk of corruptionbecause they have significant value to candidates. ................................................16

3. Limits on contributions to Super PACs are also an appropriate means toguard against the risk that Super PACs will coordinate with candidates orpolitical parties. ......................................................................................................18



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TABLE OF CONTENTS (contd)

Page

4. The public would perceive large contributions to Super PACs ascorruption of the democratic process. ....................................................................21

C.The Circuit-Level Opinions Cited By NYPPP Are Inapposite or Unpersuasive. .........22

CONCLUSION ..............................................................................................................................25



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TABLE OF AUTHORITIES

Cases Page(s)

Ala. Democratic Conf. v. Attorney General,

No. 11-16040, 2013 U.S. App. Lexis 19330 (11th Cir. Sept. 19, 2013) .................................21

Biediger v. Quinnipiac Univ.,691 F.3d 85 (2d Cir. 2012).......................................................................................................23

Buckley v. Valeo,424 U.S. 1 (1976) ...................................................................................... 1, 9-12, 14, 17-18, 21

Cal. Med. Assn v. FEC,453 U.S. 182 (1981) .............................................................................................................9, 12

Citizens United v. FEC,

558 U.S. 310 (2010) .........................................................................................................2, 9, 12

DiLaura v. Power Auth. of N.Y.,982 F.2d 73 (2d Cir. 1992).......................................................................................................23

Emilys List v. FEC,581 F.3d 1 (D.C. Cir. 2009) ...............................................................................................23, 25

FEC v. Beaumont,539 U.S. 146 (2003) .............................................................................................................9, 12

FEC v. Colo. Republican Fed. Campaign Comm.,533 U.S. 431 (2001) .....................................................................................................11, 19, 25

McConnell v. FEC,540 U.S. 93 (2003) ............................................................................................... 4, 9, 12, 18-21

New York Progress & Prot. PAC v. Walsh,733 F.3d 483 (2d Cir. 2013).....................................................................................................22

Nixon v. Shrink Mo. Govt PAC,528 U.S. 377 (2000) .......................................................................................................9, 10, 21

North Carolina Right to Life, Inc. v. Leake,525 F.3d 274 (4th Cir. 2008) .............................................................................................23, 24

Ognibene v. Parkes,671 F.3d 174 (2d Cir. 2011).......................................................................10, 12, 18, 21, 24, 25

Randall v. Sorrell,548 U.S. 230 (2006) .............................................................................................................9, 10



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TABLE OF AUTHORITIES

Cases Page(s)

Republican Natl Comm. v. FEC,

698 F. Supp. 2d 150 (D.D.C. 2010), affd without op., 130 S. Ct. 3543 (2010) ......................18

Republican Party of N.M. v. King,741 F.3d 1089 (10th Cir. 2013) ...............................................................................................23

SpeechNow.org v. FEC,599 F.3d 686 (D.C. Cir. 2010) .............................................................................................4, 23

Stop This Insanity, Inc. Employee Leadership Fund v. FEC,902 F. Supp. 2d 23 (D.D.C. 2012) ...........................................................................................21

Statutes

N.Y. Election Law 14-100 .....................................................................................................................................3 14-112 .....................................................................................................................................3 14-114 ...............................................................................................................................3, 18 14-126 .....................................................................................................................................3

Miscellaneous Authorities

FEC Advisory Op. 2010-09 (July 22, 2010) ....................................................................................4

FEC Advisory Op. 2010-11 (July 22, 2010) ....................................................................................4

New York State Board of Elections, Op. No. 3 (Apr. 25, 1994) .....................................................3

Richard Briffault, Super PACs, 96 Minn. L. Rev. 1644 (2012) ......................................................4



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PRELIMINARY STATEMENT

To guard against corruption and the appearance of corruption in government, New York

has for decades limited the amounts that individuals may contribute to political committees

advocating for the election or defeat of candidates for state or local office. Plaintiff New York

Progress and Protection PAC (NYPPP) asserts that the First Amendment compels this Court to

carve out an exception to New Yorks contribution limits for so-called Super PACspolitical

committees that claim independence from candidates and make expenditures for such express

advocacy. NYPPP accepts that the First Amendment generally allows limits on political

contributions, but argues that contributions to Super PACs are so different from other kinds of

contributions that they may not constitutionally be limited.

The bright line that NYPPP attempts to draw between contributions to Super PACs and

other political contributions is both unrealistic and inconsistent with Supreme Court precedents

upholding contribution limits, including limits on contributions to political committees, as

preventive measures to guard against the risk of corruption and the appearance of corruption.

Starting with Buckley v. Valeo, 424 U.S. 1 (1976), and continuing through the present day, the

Supreme Court has sharply distinguished between expenditures to pay directly for the

dissemination of ones own political speech and contributionsto fund anothers political speech.

The Courts categorically different treatment of contributions versus expenditures turns on

(1) the fact that contribution limits are only marginal restrictions on First Amendment rights,

whereas expenditure limits are direct speech restrictions, and (2) contributions are more likely to

be exchanged for political favors than are expenditures. The Supreme Court and Second Circuit

have thus consistently upheld limits on contributions, while almost always striking down limits

on expenditures.



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NYPPP asserts that the acknowledged risk of corruption arising from unlimited

contributions generally is entirely absent when the unlimited contribution flows from an

individual to a Super PAC. But its assertion does not accord with reality. As experience in the

federal system has shown, when Super PACs are permitted to receive unlimited contributions to

promote a candidates election, candidates and political parties will quickly come to rely on the

formation of such committees to take advantage of that source of unlimited funding. Federal

Super PACs have often been organized to promote a single candidate and run by former

campaign aides of that candidate; and candidates know who donates to their Super PACs and

have made clear that they appreciate those donations. Experience therefore does not support

NYPPPs contention that contributions to Super PACs raise no risk of corruption or the

appearance of corruption.

NYPPP claims that the need for a Super PAC carve-out to New Yorks contribution limit

follows inexorably from decades of Supreme Court precedent. Pl.s Mem. of Law in Support

of Its Mot. for Summary Judgment (Mem.) at 2. But NYPPP relies principally on just one

Supreme Court decisionCitizens United v. FEC, 558 U.S. 310 (2010)which does not control

the issue here. In Citizens United, the Supreme Court struck down a federal ban on independent

expenditures by corporations. This case, by contrast, does not involve an expenditure limit.

Rather, this case addresses a contribution limit, and that distinction makes an enormous

difference. There is no basis for NYPPPs attempt to characterize donations to it as if they were

direct expenditures to fund speech by the donating party. Accordingly, and for additional reasons

stated below, this Court should deny NYPPPs motion for summary judgment and enter

judgment for the defendants.



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STATEMENT OF FACTS

A. New Yorks Limit on Contributions to Political CommitteesNew York law limits the amount that an individual may contribute to a political

committee during a calendar year. N.Y. Election Law 14-114. New York defines political

committee to include any corporation, committee, political club or group operating to aid or to

promote the success or defeat of a political party or principle, ballot proposal, or candidate for

office.Id. 14-100(1). New York law distinguishes between authorized political committees,

which are designated by a candidate to take part in his or her election efforts, and unauthorized

political committees, which have not been so designated by any candidate.Id. 14-112.

Contributions to authorized and unauthorized political committees are subject to New

Yorks aggregate contribution limit. SeeBd. of Elections, Op. No. 3 (Apr. 25, 1994) (ECF No.

21-3). An individual may make contributions of up to $150,000 per year in connection with the

nomination or election of candidates, and a committee may not accept contributions that would

violate applicable limits. Id. 14-114(8), 14-126.1A contribution to an unauthorized political

committee is not treated as a contribution to a candidate, i.e., an individual may contribute the

statutory maximum to a candidate andalso contribute to an unauthorized committee supporting

the candidate, so long as the individual donor stays within the aggregate limit. NYPPP contends

that this contribution limit is unconstitutional as applied to unauthorized committees that make

1The parties disagree as to whether Election Law 14-114 permits an individual to make

a contribution of $150,000 (the aggregate limit) to an unauthorized committee that supports asingle candidate, or whether the contest-specific limits in that statute instead apply to such acontribution. But the Court need not resolve that question of state law. NYPPP raises a federalconstitutional challenge only to the $150,000 aggregate limit. In any event, New Yorks law isconstitutional whether the applicable contribution limit is $150,000 or a lower amount, anddefendants arguments are even stronger if, as NYPPP contends, New York law permitscontributions of $150,000 to a single-candidate committee.



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only independent expenditures to advocate directly for the election or defeat of a candidate or

candidates for office. In other words, NYPPP wants to bring Super PACs to New York.

B. The Rise of Federal Super PACs as De Facto Party or CandidateCommitteesThe term Super PAC refers to an entity that (1) engages in express advocacy on behalf

of or in opposition to candidates; (2) claims independence from political parties and candidates;

and (3) may receive unlimited contributions. SeeRichard Briffault, Super PACs, 96 Minn. L.

Rev. 1644, 1646-47 (2012). The evolution of the Super PAC as a central component of modern

federal campaigns is a relatively recent phenomenon in its specifics, but it follows a familiar

pattern in the broader sense that wealthy individuals have long found ways to secure political

favors in exchange for large contributions. See McConnell v. FEC, 540 U.S. 93, 115-20 (2003)

(reviewing history); Expert Declaration of Clyde Wilcox (Wilcox Decl.) 5-7. At the federal

level, Super PACs are the product of the D.C. Circuits declaratory ruling in SpeechNow.org v.

FEC, 599 F.3d 686 (D.C. Cir. 2010), and subsequent FEC advisory opinions. SeeFEC Advisory

Op. 2010-09 (July 22, 2010); FEC Advisory Op. 2010-11 (July 22, 2010). With a new legal

framework in place well before the 2012 election cycle began, political party networks and

candidates campaigns positioned Super PACs to leverage unlimited contributions on behalf of

candidates. See Wilcox Decl. 9. In short, candidates and their affiliated partisan networks

deployed Super PACs as de facto party and candidate committees. See id. 9, 12-18.

The candidate- and party-centered Super PACs that emerged at the federal level were a

direct response to a system of legal rules restricting contributions to political parties and

candidates but allowingunlimited contributions to committees that support those same parties

and candidates. Organizing Super PACs and staffing them with high-ranking political operatives

quickly became imperative in most competitive federal elections, because such Super PACs are



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an invaluable weapon for campaigns. As one spokesperson for President Obamas campaign put

it, Were not going to bring a butter knife to a gun fight. SeeDeclaration of Taylor Lincoln

(Lincoln Decl.), Ex. A at 21. Recent research in political science shows that advertising by

Super PACs is particularly effective for the purpose of attacking a candidates opponent, in part

because it allows candidates to disclaim responsibility for negative messages. Wilcox Decl.

14(d), 16(d). Campaign operatives have long recognized this point; one explained that A

group like ours could lie through its teeth, and the candidate it helps stays clean. Id. 14(d).

Because Super PACs operated by the candidates allies can provide critical assistance to the

candidate, contributions to a Super PAC are valuable to the candidate and his or her campaign.

Wilcox 12, 15-16; Menges Tr. 34:7-35:17.2

A review of the biggest-spending Super PACs in 2012 provides overwhelming evidence

that political parties and candidates have used these committees as de facto party and candidate

committees. After SpeechNow.org, party leaders and allies of the candidates simply assumed

control positions at Super PACsthe very same people that lead the political parties and counsel

the candidates also lead a substantial number of Super PACs. SeeLincoln Decl. 7, Ex. A at 9,

20-33, 39-49. For example, the highest-spending Super PAC supporting Mitt Romney in 2012

was led by the general counsel and political director of Romneys 2008 campaign, among others.

Similarly, the highest-spending Super PAC supporting President Obama in 2012 was operated by

veterans of the Obama White House. See id., Ex. A at 20-23. The Super PACs for presidential

candidates Rick Perry and Newt Gingrich were also operated by former aides. SeeWilcox Decl.

2 The transcripts cited herein are attached to the Declaration of Joshua Pepper, Esq.,

submitted herewith (Pepper Decl.), as Exhibits 1-7.



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9(d). These are only a few prominent examples; numerous other Super PACs were operated by

close allies of candidates and elected officials. See Lincoln Decl., Ex. A at 23-33, 39-49.

From the perspective of donors, candidates, and the media, the line separating many

Super PACs from authorized candidate committees is barely visible, if it is visible at all.

Candidates appear at Super PAC fundraisers and tell donors which Super PACs to support,

leaving no question which Super PACs are unofficially authorized by the candidate or the

party. See Wilcox Decl. 9(c). The candidates maintain only the slimmest pretense that

donations to such Super PACs are not donations to them. Indeed, in at least one instance,

Romney characterized a contribution to his Super PAC as a donation to me. Id. 17(d).

Candidates explicitly raise money for Super PACs within legal limits, as when U.S. Senator

David Vitter offered to go alligator hunting with individuals who contribute $5,000 to his Super

PAC, id. 9(i), and do so implicitly whenever they appear at Super PAC events or signal to

donors which Super PACs to support, id. 8(a), 17(b)-(d). The fact that candidates solicit

donations for Super PACs (directly or indirectly) further demonstrates that they value them, just

as they value direct contributions. SeeMenges Tr. 34:7-35:17.

In 2012, over fifty percent of Super PACs spending more than $100,000 were devoted to

a single candidate, and others were closely affiliated with a political party. Lincoln Decl. 5

(table). Together, these groups devoted solely to improving the electoral fortunes of particular

candidates and parties spent over $476 million, or 74.4 percent of all spending by Super PACs.

Id. Super PACs sponsored more ads than the political parties in 2012 senate races and the

presidential general election, and sponsored more ads in the 2012 presidential primaries than the

political parties and candidates combined, seeDeclaration of Michael Franz (Franz Decl.) 7.

These trends are likely to continue in 2014 and so long as the courts and FEC permit unlimited



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contributions to political committees for express advocacy, and campaigns and their agents labor

to erase the boundary separating authorized committees and Super PACs entirely. SeeWilcox

Decl. 9(g); Franz Decl. 8.

C. The Vulnerability of New York to Super PACsToday, New Yorks generally applicable contribution limits prevent unauthorized

committees from receiving unlimited contributions. But there can be little question that, if New

Yorks limits were removed, the political parties and their candidates would quickly take

advantage of such a shift in rules in order to leverage sources of unlimited funds. SeeWilcox

Decl. 4(a), 5-11. Those who would control the political agenda in New York already test the

limits of the States campaign finance laws, and evidence abounds that special interests seek to

purchase such control in Albany by making large donations, a problem that would worsen if they

were allowed to make unlimited contributions to Super PACs. SeeCommission to Investigate

Public Corruption,Preliminary Report29-38 (Dec. 2, 2013), attached as Ex. 34 to Pepper Decl.

D. New York Progress and Protection PACCraig Engle, the registered treasurer and only officer of NYPPP, is an attorney and

partner at the law firm of Arent Fox, located in Washington, D.C., and has worked on behalf of

Super PACs and campaigns as an attorney and political consultant. Engle Tr. 16-17; Engle Decl.

6. Engle formed NYPPP for the purpose of challenging New Yorks aggregate contribution

limit. Engle Tr. 56:19-57:4, 140:24-141:25; Torchinsky Tr. 40:10-13.

NYPPP sought only donations that would exceed New Yorks applicable contribution

limits. Engle and another campaign finance lawyer, Jason Torchinsky, approached a prominent

donor named Shaun McCutcheon and asked him for a donation of greater than $150,000.

Torchinsky Tr. 50:21-51:4; Engle Tr. 139:12-140:2; McCutcheon Tr. 23:7-11; Engle Decl. 20;



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Pepper Decl., Ex. 28. McCutcheon agreed to donate $200,000 to NYPPP. McCutcheon Tr. 21.

NYPPP ultimately raised $230,000 in contributions before the New York City mayoral election:

$200,000 from billionaire David Koch, $20,000 from McCutcheon, and $10,000 from hedge

fund manager Sean Fieler. Engle Tr. 74:14-75:15; Pepper Decl., Ex. 9.

Engle, as NYPPPs treasurer and only officer, decides how to spend NYPPPs funds, and

he decided to produce a Spanish-language television ad in support of New York City mayoral

candidate Joe Lhota, for broadcast by a network targeting Hispanic viewers. Engle Tr. 110-112;

Weitzner Tr. 23-24, 31, 135-136. Engle chose Jamestown Associates (Jamestown), a political

consulting firm, to produce the ad for NYPPP. Engle Decl. 11. Engle directed Jamestowns

production of the ad and participated in forming its content. Weitzner Tr. 28:19-25, 131:5-22;

Pepper Decl., Ex. 21. Before placing the ad buys, Jamestown checked to see what ads the Lhota

campaign was buying. Weitzner Tr. 27:11-24. NYPPPs donors had no input into the content or

timing of its messages. Engle Decl. 11. Indeed, McCutcheon did not even ask anyone about

how NYPPP had used his contribution. McCutcheon Tr. 86:9-87:8.

Prominent political consultants, lawyers, campaign operatives, and advertising vendors

form a small, tight-knit community. Menges Tr. 20:16-21:3. Those ties are evident in this very

case, even though NYPPP was formed for the purpose of litigation and presumably would seek

to minimize the visibility of those connections. For example, NYPPP has direct relationships

with Lhotas campaign staff. Engle and Torchinsky have both known Jeffrey Buley, counsel to

the Lhota campaign, for many years. Engle Tr. 119:21-120:12; Torchinsky Tr. 130:15-20. And

Torchinsky has known Lhotas advisor Jake Menges since 2007. Torchinsky Tr. 129:11-15.

Also, Engle was treasurer for a Super PAC that supported the senate candidacy of Connie Mack

of Florida, and Menges advised the same committee. Engle Tr. 17:15-18:2; Menges Tr. 15:2-



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17:2. And the firm that NYPPP hired to create its ad in support of LhotaJamestownalso has

close relationships with members of Lhotas campaign, including Menges and Lhotas head

fundraiser, Jason Weingartner. Weitzner Tr. 10:6-7, 85:11-25, 88:22-24, 90:14-96:8, 126:9-24;

Menges Tr. 11:9-23, 54:19-23, 59:2-25, 70:8-86:4, 92:9-98:8, 106:20-107:2; Weingartner Tr.

32:5-33, 107:10-108:2, 108:25-109:25.

Since the 2013 New York City mayoral election, McCutcheon has continued to donate to

NYPPP in fulfillment of his $200,000 pledge (McCutcheon Tr. 97), but the entity has otherwise

ceased receiving or spending money. Pepper Decl., Exs. 24, 25, 26. NYPPP currently has no

plans to support any candidates in upcoming elections, and Engle does not anticipate that

NYPPP will continue to function once this lawsuit is resolved. Pepper Decl., Exs. 24, 25, 26.

ARGUMENT

I. CONTRIBUTION LIMITS ARE CONSISTENTLY UPHELD AS APPROPRIATE

MEASURES TO GUARD AGAINST RISKS OF CORRUPTION AND THE

APPEARANCE OF CORRUPTION IN GOVERNMENT.

The Supreme Courts First Amendment doctrine distinguishes sharply between (a) limits

on contributions to promote the election or defeat of a candidate and (b) limits on expenditures

for those purposes. Contribution limits are subject to relatively complaisant constitutional

review, FEC v. Beaumont, 539 U.S. 146, 161 (2003), and they are consistently upheld under

such review, see id.; McConnell, 540 U.S. 133-154; Nixon v. Shrink Mo. Govt PAC, 528 U.S.

377, 397 (2000); Cal. Med. Assn v. FEC, 453 U.S. 182, 201 (1981);Buckley, 424 U.S. at 38. By

contrast, expenditure limits are subject to strict scrutiny, and they are typically struck down as

unconstitutional, Citizens United, 558 U.S. at 365;Randall v. Sorrell, 548 U.S. 230, 246 (2006)

(plurality opinion);Buckley, 424 U.S. at 51.



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The respective frameworks for review differ greatly because a contribution limit entails

only a marginal restriction upon the contributors ability to engage in free communication,

whereas an expenditure limit substantially curtails a persons freedom to make significant use

of the most effective modes of communication. Buckley, 424 U.S. at 19-21. Contributions

themselves have only minimal expressive value, and the transformation of contributions into

political debate involves speech by someone other than the contributorthe recipient of the

contribution. Id. at 21. Moreover, a contribution limit does not in any way infringe the

contributors freedom to discuss candidates and issues, and it does not reduce the total amount

of money potentially available to promote political expression.Id.at 21-22.

Because contribution limits are only marginal restrictions on speech, they are

permissible as long as they are closely drawn to address a sufficiently important state interest.

Ognibene v. Parkes, 671 F.3d 174, 183 (2d Cir. 2011). A court applying this standard owes

special deference to legislative determinations regarding campaign contribution restrictions. Id.

(citing cases). When a plaintiff sues based on a claimed right to receive contributions, a

contribution limit must be upheld unless it is so low as to prevent the recipient from amassing

the resources necessary for effective advocacy. Randall, 548 U.S. at 247 (plurality op.)

(quoting Buckley, 424 U.S. at 21); Nixon, 528 U.S. at 397 (same). Plaintiff can engage in

effective advocacy without receiving unlimited contributions, and any contrary contention would

be inconsistent with precedents such as Buckley, California Medical Association, Nixon, and

McConnell upholding contribution limits far lower than the $150,000 aggregate contribution

limit challenged here.

The Supreme Courts cases upholding contribution limits establish two more critical

principles. First, contribution limits by their nature are prophylactic: they aim to prevent, in



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advance, a risk of corruption and the appearance of corruption that is presented by large

contributions, even though large contributions may not actually lead to corruption in most cases.

See Buckley, 424 U.S. at 29 (assuming for the sake of argument that most large contributors do

not seek improper influence over a candidates position or an officeholders action). Second,

and relatedly, one of the legitimate purposes of contribution limits is to guard against

circumvention of other valid limitssomething that is often difficult to detect and combat

directly. See, e.g.,FEC v. Colo. Republican Fed. Campaign Comm., 533 U.S. 431, 462 (2001).

As shown below, under these principles, New Yorks $150,000 aggregate contribution limit is

constitutional as applied to contributions to Super PACs.

II. THE CONSTITUTION DOES NOT REQUIRE A CARVE-OUT FROM NEW

YORKS CONTRIBUTION LIMIT FOR CONTRIBUTIONS TO SUPER PACS.

New Yorks contribution limits, which have stood for over thirty years, leave NYPPP

free to make unlimited expenditures for express advocacy (and issue advocacy), and to receive

large (but not unlimited) contributions, and leave all individuals and corporations, including

prospective donors to NYPPP, free to spend as much as they would like to fund their own

political speech directly. See supra at 10. Plaintiff nonetheless argues that the First Amendment

compels this Court to carve out a permanent exception to New Yorks law that would enable it to

accept unlimiteddonations of millions of dollars for the purpose of influencing elections.

But NYPPPs arguments ignore the numerous precedents from the Supreme Court

upholding contribution limits under the First Amendment. The Court has never recognized any

right to make unlimited contributions for political purposes, and for good reason. A substantial

risk exists that a donor who makes very large contributions will receive special favors in

exchange for the contribution, i.e., a risk of quid pro quo corruption. And even if such

contributions did not give rise to quid pro quo corruption, the donors who make them



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indisputably obtain undue influence over elected officials. The States important interests in

deterring both forms of corruption and the appearance thereof outweigh NYPPPs marginal

interest in receiving unlimited contributions.

A. Plaintiffs Reliance on Citizens United Is Misplaced BecauseThat Decision Does Not Address a Contribution Limit.

NYPPPs primary argument is that the Supreme Court already decided in Citizens United

that donations to independent expenditure groups, as a matter of law, do not create any

cognizable risk of . . . corruption. Mem. at 11 (emphasis in original); see id. at 12-13. But

Citizens United struck down a federal ban on independent expenditures by corporations; it did

not strike down any contribution limit. 558 U.S. at 365. To the contrary, Citizens United

reaffirm[ed] existing precedent on the propriety of contribution limits. Ognibene, 671 F.3d at

183. Indeed, Citizens United explicitly notes that contribution limits are preventative and

have been an accepted means to prevent quid pro quo corruption, even though very few

contributions may lead to such corruption. 558 U.S. at 357, 359 (emphasis added).

Thus, while rejecting the notion that restrictions on expenditures may be justified on

prophylactic grounds, the Supreme Court reaffirmed that contribution limits are appropriate

prophylactic measures. Because the Supreme Court carefully preserved the distinction between

expenditures and contributions in Citizens United, there is no basis for reading that decision as

overturning prior case law concerning contribution limits. SeeOgnibene, 671 F.3d at 184 & n.10.

The numerous holdings sustaining limits on contributions to political committees as

constitutional therefore remain good law. See, e.g., McConnell, 540 U.S. 133-154; Cal. Med.

Assn, 453 U.S. at 201; Buckley, 424 U.S. at 38; see alsoBeaumont, 539 U.S. at 161-63

(upholding ban on corporate contributions).



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In an effort to bring this case within the holding of Citizens United and avoid the

precedents upholding contribution limits,NYPPP argues that donations to Super PACs should be

seen as expenditures, not as contributions. NYPPP argues that donations to it are, in effect,

expenditures to pay for speech with a specific message. Mem. at 10. But this is not true, as the

record here demonstrates. Plaintiffs treasurer, Craig Engle, controls the specific messages that

NYPPP pays to broadcast; donors have no control over the message or even any input. Seesupra

at 8. Donors typically seek an outcomee.g., the election or defeat of a particular candidate,see

McCutcheon Tr. 87:3-5 (You know, if they dont elect some conservatives, Ill quit donating to

them), or political favors, or both. Their purpose is not to speak, or even to express symbolic

association with a candidate (seeMem. at 10). Their purpose is instead to give money that will

enable the candidates former staff or allies or other operatives to persuade voters using whatever

speech that the operativesnot the donordeem best suited to help the candidate win the

election. SeeMcCutcheon Tr. 86:19-87:8.

Here, for example, NYPPP contributor Shaun McCutcheon has said that he regularly

contributes to campaigns throughout the United States because he believes that developing

strong conservative leaders at the local level ultimately helps strengthen the Republican Party

and produces more conservative policies at the national level. Declaration of Shaun

McCutcheon (McCutcheon Decl.) 4 (ECF No. 6). But the Spanish-language advertisement

broadcast by NYPPP to support Joe Lhota in the New York City mayoral race did not mention

strengthening the Republican Party or producing conservative policies here in New York or

nationallythe advertisement did not even say that Lhota was a Republican. Pepper Decl., Ex.

35. As McCutcheon explained: [H]ow they [NYPPP] run the thing is up to them and how they

spend the money is up to them. Its a donation. McCutcheon Tr. 86:19-87:8.



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Consequently, here, as in Buckley, the transformation of contributions into political

debate involves speech by someone other than the contributor.Buckley, 424 U.S. at 21. NYPPP

disregards Buckley in arguing that donations to NYPPP should be seen as expenditures, not

contributions, because they will eventually pay for someone elses speech. It was the fact that

contributions lead to speech by someone other than the contributor that led the Court to

conclude in Buckley that limits on contributions are only marginal restrictions on speech, and

therefore should be subject to more deferential constitutional review. NYPPP in essence seeks to

eliminate the Supreme Courts well-established distinction between contributions and

independent expenditures, which no court but the Supreme Court may do.

B. Plaintiff Is Incorrect in Arguing That Allowing UnlimitedContributions to Super PACs Would Present No Risk of

Corruption or the Appearance of Corruption.3

1. The Super PAC carve-out sought by plaintiff would leadoperatives to organize Super PACs in New York to simulate

candidate or party committees as closely as possible.

Experience and political science show that where political committees are permitted to

receive unlimitedcontributions, political parties, candidates, and donors will find a way to use

these committees as vehicles for exchanging donations for political favors. See Wilcox Decl.

5-11. In the case of Super PACs, campaign professionals and political party leaders have

organized these special-purpose entities to replicate the characteristics of candidate and party

committees as closely as possible, without triggering the loss of formal Super PAC status. See id.

9, 12-18; Lincoln Decl., Ex. A at 20-33, 39-49.

3Commissioners Walsh and Peterson do not join in Point II.B of this brief.



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The 2012 election cycle at the federal level demonstrated how quickly political parties

and candidates adapted to the SpeechNow.orgruling and moved key operatives into position to

receive unlimited contributions as directors of Super PACs. See Wilcox Decl. 9. Similarly,

early evidence from States in which limits were recently lifted strongly suggests that Super PACs

will dominate spending on campaigns in those States in future elections. See id. 10. The

preliminary results of an in-depth investigation into New Yorks existing campaign finance

practices confirms that a pay-to-play culture is already present; it would become much worse if

unlimited funds for express advocacy were allowed to flow into the hands of elected officials

closest allies and campaign operatives. Seesupraat 7; Wilcox Decl. 10(g)-(i), 11.

The Super PACs that would form in New York in the aftermath of an order lifting

contribution limits would closely resemble authorized political party and candidate committees,

as many of their federal counterparts do. Specifically, a significant number of state Super PACs

would likely be operated by high-ranking or important members of a political party, and would

have very close ties to candidates for election. Such Super PACs would not need to be formed

until support for a particular candidate within the party coalesces and a strategy for electing that

person has been developed, and candidates and their aides would encourage contributions to the

Super PAC or Super PACs that form to support them. After these steps occur, party leaders

both formal and informalwould sort out who works within the formal campaign structure and

who collects unlimited donations as part of a nominally independent Super PAC staffed by

persons who counseled or worked for the candidate or party before forming the candidates or

partys Super PAC. These Super PACs would exist outside of the political party or the

candidates campaign apparatus in name only. SeeWilcox Decl. 4(a), 11, 12.



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2. Large contributions to Super PACs create a substantial risk ofcorruption because they have significant value to candidates.

Carving out contributions to Super PACs from New Yorks aggregate contribution limit

would create a substantial risk of corruption. NYPPPs attempt to draw a bright line between

contributions to Super PACs and contributions to candidates or political parties does not

withstand scrutiny as a practical matter.

A potential for corruption arises when a person makes a contribution that has substantial

value to a candidate. Contributions to surrogate campaign entitieswhich is what many Super

PACs arehave tremendous value to candidates, because those entities have insider knowledge

and specialized expertise that can be deployed in support of the candidate, and because the

candidates have ample means of signaling their encouragement to donors to contribute to those

Super PACs. From the point of view of both the donor and the candidate, there is little difference

between giving money to the candidates former staff operating a Super PAC to support the

candidate and giving money to his or her current staff at an authorized committee. Both groups

likely have inside information about the candidates goals and strategy, and have the professional

experience needed to translate that inside information into effective political messages that

complement the candidates own campaign (usually, by broadcasting attack ads). Thus, a single-

candidate Super PACs messages will be as effective as or even more effective than the

candidates own messages. See Wilcox Decl. 14(d). And as a result, donations that finance

advertisements broadcast by the candidates surrogate campaign staff (in the temporary employ

of a Super PAC) have significant value to the candidate and corrupting potentialthe same or

nearly the same corrupting potential as direct contributions. See id. 12-18.

Ignoring the close relationships between many Super PACs and candidates, plaintiff

argues (Mem. at 2, 13) that because the State cannot limit independent expenditures, it



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necessarily cannot limit contributions to an entity that makes only independent expenditures. But

this argument rests on flawed assumptionsit incorrectly assumes that the risk of corruption is

the same regardless of how independent expenditures are funded and wrongly reasons from this

false premise that the consequences of striking down contribution limits are the same as the

consequences of striking down expenditure limits. Contrary to these assumptions, allowing

unlimited contributions to political committees creates opportunities for corruption that are

radically different from those created by allowing unlimited expenditures.

A large donors own independent expenditures are unlikely to have value to the candidate

because, like Shaun McCutcheon, most donors lack the time and the expertise to broadcast an

effective message that assists the candidate. SeeMcCutcheon Decl. 6. Such expenditures may

well provide little assistance to the candidates campaign, Buckley, 424 U.S. at 47, and thus

create far less potential for corruption. But contributing the money to a Super PAC changes the

dynamics dramatically: a donors money becomes far more valuable to the candidate when the

donor can place it in the hands of the candidates trusted advisors, who are campaign

professionals operating a Super PAC. And whatever value may be lost because the candidate

cannot directly supervise his allies advertising efforts during the campaign is partly or wholly

offset by the fact that the Super PAC can broadcast attack ads for the candidate, without

attaching the candidates name to the attack. SeeWilcox Decl. 14(d).

Moreover, McConnell forecloses NYPPPs argument that a State cannot have a

constitutionally-sufficient interest in restricting contributions to a committee unless the

committee coordinates its expenditures with the candidate. There, the Court relied on the close

relationship between federal officeholders and the national parties as the basis for its ruling

upholding limits and explicitly rejected the argument that the government had no interest in



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limiting contributions to committees unless the committees were coordinating expenditures with

candidates. See 540 U.S. at 152-55. This holding remains good law. See Ognibene, 671 F.3d at

184 & n.10; Republican Natl Comm. v. FEC, 698 F. Supp. 2d 150, 159 (D.D.C. 2010) (three-

judge court), affd without op., 130 S. Ct. 3543 (2010). Thus, the State has an interest in limiting

the risks of corruption that are inherent in a system permitting unlimited financial

contributions. Buckley, 424 U.S. at 28. That this interest may not be strong enough to justify

restrictions on independent expenditures is irrelevant because the challenged law places no

restrictions on independent expenditures.

Nor is NYPPP correct in asserting (Mem. at 3, 13) that the only conceivable purpose

served by the contribution limit here is to reduce independent expenditures. The challenged

contribution limit does not regulate the amount of money that NYPPP may spend on express

advocacy. See N.Y. Election Law 14-114(8). NYPPP may make unlimited independent

expenditures. The overall effect of the [States] contribution ceilings is merely to require . . .

political committees to raise funds from a greater number of persons and to compel people who

would otherwise contribute amounts greater than the statutory limits to expend such funds on

direct political expression, rather than to reduce the total amount of money potentially available

to promote political expression.Buckley, 424 U.S. at 21-22.

3. Limits on contributions to Super PACs are also an appropriatemeans to guard against the risk that Super PACs will coordinate

with candidates or political parties.

NYPPP contends (Mem. at 13) that corruption cannot occur in the absence of

coordination between a Super PAC and a candidate, but this argument makes no sense in light of

the facts developed here. See supraat 4-9. The Super PAC is notthe entity that seeks political

favors from the candidate; rather, in many cases, it is the de facto agentof the candidate. In any



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event, the absence of coordination is significant only when evaluating a restriction on

independent expenditures, but this case is about the risks of allowing unlimited contributions to

entities that closely resemble party and candidate committees.

But even if NYPPP were correct that coordination (however defined) is essential to the

presence of any risk of corruption or its appearance, this would not lead to the conclusion that

plaintiff seeks here. The inevitable tendency of Super PACs to replicate candidate or party

committees raises the risk that they will cross the line of actual coordination, direct or indirect,

and thereby become vehicles to circumvent limits on direct contributions to candidates or

political parties. And this anti-circumvention interest would be sufficient ground to reject the

carve-out from New Yorks prophylactic contribution limits that NYPPP seeks. The Supreme

Court has noted that the entire history of campaign finance regulation teaches the hard lesson of

circumvention, McConnell, 540 U.S. at 165, and has recognized that in the context of actual

political campaigns, circumvention is often very hard to trace and difficult to identify[] and

directly combat. Colo. Republican Fed. Campaign Comm., 533 U.S. at 462; see alsoWilcox

Decl. 17(b)-(c). Because direct enforcement is hard, prophylactic rules may appropriately be

used to eliminate or reduce opportunities for circumvention of core campaign finance

restrictions.

Allowing Super PACs to accept unlimited contributions would create substantial

opportunities for donors and campaign officials to circumvent limits on contributions to

candidates and political parties, whose validity plaintiff does not challenge here. NYPPP

presupposes that the sole method that the Constitution permits for policing this risk is to create

rules against coordination that cover the range of circumstances presented in actual political

campaigns; to engage in individualized enforcement of such coordination rules after the fact on a



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committee-by-committee basis; and then to recharacterize contributions to a committee as direct

contributions to the candidate in cases where coordination is proven. But no constitutional

principle says that this is the only valid regulatory approach, and NYPPPs argument ignores the

substantial precedent upholding contribution limits as prophylactic measures.

Counting contributions to unauthorized committees, along with contributions to

candidates and parties, towards New Yorks $150,000 aggregate contribution limit serves a valid

anti-circumvention purpose that supplements the development and enforcement of rules deeming

coordinated expenditures to be direct contributions to candidates. SeeWilcox Decl. 4, 5, 11,

17(b)-(d), 18. However the concept is defined, coordination between Super PACs and campaigns

is easy to achieve, but extremely difficult for government bodies to identify and detect in

particular cases and then to prove in individualized enforcement actions. Coordination may be

accomplished with gestures or conversations that no regulator could detect. See McConnell, 540

U.S. at 221. Committees themselves often resist government review of information disclosing

their activities and the content of conversations relating to the committees operation. And even

if gestures and communications by committee operators were somehow observed directly by

government regulators, their meaning may depend on contextual information that would either

be unavailable to regulators or enormously expensive and intrusive to reconstruct for the

purposes of enforcement actions. Regulating coordination directly, on a committee-by-

committee basis, does not sufficiently guard against the risk that Super PACs will become

vehicles to circumvent limits on contributions to candidates and parties.

The basic principle that a government may enact contribution limits as a prophylactic

measure intended to reduce the riskof corruption has long been recognized. Buckleyupheld the

challenged contribution limits, including an aggregate limit of $25,000 in total contributions



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annually, after assuming that most large contributors do not seek improper influence over a

candidates position or an officeholders action. 424 U.S. at 29. Here, too, defendants need not

show that all or most Super PACs would coordinate with candidates. Rather, it is sufficient to

show that there is a sufficient risk of such circumvention to warrant the modest restriction posed

by New Yorks aggregate contribution limit. See McConnell, 540 U.S. at 153-58; Ala.

Democratic Conf. v. Attorney General, No. 11-16040, 2013 U.S. App. Lexis 19330, at *13 (11th

Cir. Sept. 19, 2013);see also Stop This Insanity, Inc. Employee Leadership Fund v. FEC, 902 F.

Supp. 2d 23, 38 (D.D.C. 2012) (If express advocacy for particular federal candidates were to

lose its independence (either in reality or appearance), it stands to reason that the doctrine

carefully crafted in Citizens Unitedand SpeechNowwould begin to tumble back to Earth.).

4. The public would perceive large contributions to SuperPACs as corruption of the democratic process.

The State has an important interest in deterring the appearanceof corruption as well as

actual corruption. See Buckley, 424 U.S. at 27. This interest exists even where there is no actual

corruption, because the perception of corruption, or of opportunities for corruption, threatens the

publics faith in democracy. Ognibene, 671 F.3d at 186 (citing cases). And when citizens

believe that their representatives give priority to Super PAC donors over ordinary voters, citizens

may disengage from politics altogether, abandoning the field to those who may seek to use

government to serve their own special interests. But [d]emocracy works only if the people have

faith in those who govern.Nixon, 528 U.S. at 390 (quotation marks omitted)). The perception

of corruption causes real damage to the operation of government, making it less effective for all.

For the reasons stated above, even if very large contributions to committees operated by

the candidates former aides, family members, best friends, and longtime political allies did not



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create a substantial risk of actual corruption (and they do), such contributions surely create a

perception of corruption, or of opportunities for corruption. To conclude otherwise is to assume

that a candidates family member or former campaign aide is no more likely to share information

with the candidate than anyone else and that ambitious political operatives are independent of the

powerful figuresboth politicians and major donorswho hold the keys to their professional

futures. None of these assumptions comport with reality, and polling results confirm that the

public does not accept them. See Wilcox Decl. 19 (citing polls). Allowing unlimited

contributions can only magnify public perception that moneyed interests control the legislative

and executive agenda and corrode public trust in government. The State has a strong interest in

preventing this result with limits on contributions to political committees.

C. The Circuit-Level Opinions Cited By NYPPPAre Inapposite or Unpersuasive.

Plaintiffs have introduced no evidence to refute the propositions that, if they prevail,

Super PACs are likely to emerge in New York that resemble party or candidate committees in

key respects; that donors would make very large contributions to such Super PACs in exchange

for legislative or executive action or inaction; that single-candidate or party-affiliated Super

PACs may well coordinate with candidates; and ultimately, in light of these facts, that large

donations to such Super PACs would pose a risk of corruption or the appearance of corruption.

NYPPP relies solely on case law. But the cases it cites are not controlling here.

NYPPP wrongly contends (Mem. at 4, 8, 11-12) that the Second Circuit has already

decided the principal legal questions at issue in this case. The panel explicitly declined to express

an opinion on the ultimate outcome of the case. New York Progress & Prot. PAC v. Walsh,

733 F.3d 483, 487 (2d Cir. 2013). The sole question before the panel was whether NYPPP was

entitled to a preliminary injunction, and its answer to that question does not preclude the parties



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in any wayfrom litigating the merits of the case. DiLaura v. Power Auth. of N.Y., 982 F.2d 73,

77 (2d Cir. 1992) (quotation marks omitted, emphasis added);see Biediger v. Quinnipiac Univ.,

691 F.3d 85, 107 (2d Cir. 2012) (findings of fact and conclusions of law made by a court

granting a preliminary injunction are not binding (quotation marks omitted, emphasis added)).

Thus, while the panels opinion explains why it believed that the plaintiff had a likelihood of

success on the merits, that explanation is provisional. Nothing in the panels opinion is binding

on the merits.

Nor are the out-of-circuit decisions striking down far lower limits as applied to

contributions to Super PACs persuasive. Most courts to address the question presented here have

erroneously viewed Citizens Unitedas controlling.4See, e.g.,Republican Party of N.M. v. King,

741 F.3d 1089, 1096 (10th Cir. 2013) (Citizens United governs the outcome in this case.);

SpeechNow.org, 599 F.3d at 689 (Citizens United resolves this appeal). But as discussed

above, Citizens United is a case about restrictions on independent expenditures, not a case about

contribution limits. In any event, whatever the view of other circuits, the Second Circuit has

expressly held in a merits opinion that Citizens United does not abrogate the holdings and

reasoning of McConnelland other cases with respect to contribution limits. SeeOgnibene, 671

F.3d at 183-84 & n.10.

4Judicial opinion as to the issue here is not as unanimous as plaintiff suggests. SeeMem.at 14. Before Citizens United, one circuit judge concluded that the First Amendment does notrequire an exception to contribution limits for committees that make only independentexpenditures, seeNorth Carolina Right to Life, Inc. v. Leake, 525 F.3d 274, 332-37 (4th Cir.2008) (Michael, J., dissenting), and another expressed grave doubts that the First Amendmentcould be interpreted to require such an exception in light of McConnelleven while criticizingthat decision,seeEmilys List v. FEC, 581 F.3d 1, 25-40 (D.C. Cir. 2009) (Brown, J., concurringin part). The latter judge later joined the en banc panel in SpeechNow.orgafter Citizens Unitedwas issued, which is further evidencein addition to the opinion itselfthat the D.C. Circuitviewed Citizens Unitedas decisive.



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Two courts enjoined the application of contribution limits to political committees before

Citizens United, but these courts made other errors. In North Carolina Right to Life, Inc. v.

Leake, a two-judge majority began its analysis as defendants do: by observing that the strength

of the states interest in preventing corruption is highly correlated to the nature of the

contributions recipient. 525 F.3d 274, 291 (4th Cir. 2008). And it acknowledged that some

organizations are so closely tied to candidates that the [Supreme] Court has deemed it

constitutional for states to apply contribution limits to them.Id.at 292. But the panel majority

concluded that political parties are different from political committees on the ground that the

former group, but not the latter, selects candidates for election, determines who will sit on

legislative committees, elects congressional leadership, and has more power to affect legislation

than any special interest group. See id.at 292-93 (citing McConnell, 540 U.S. at 188);see also

Emilys List v. FEC, 581 F.3d 1, 13-15 (D.C. Cir. 2009). What these courts failed to anticipate is

that, if political committees were allowed to receive unlimited contributions, while political

parties were not, the committees would begin to assume key attributes of a political party or

candidate committee in ways that essentially re-created the very corruption risk that limits on

contributions to such committees were designed to prevent. At the federal level, the change in

rules wrought by SpeechNow.org and other decisions has led political networks to shift power

outside the formal party structure in order to take advantage of unlimited fundraising by Super

PACs. See Wilcox Decl. 8-11. Courts that have concluded that the First Amendment

distinguishes between authorized and unauthorized political committees simply failed to consider

how easy it is for political operatives to walk across the line separating the two in order to

collected unlimited donations. SeeWilcox Decl. 8(c), 9, 17(a)-(b).



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In Emilys List v. FEC, the majority observed that, [u]nlike the political parties

examined inMcConnell, there is no record evidence that non-profit entities have sold access to

federal candidates and officeholders in exchange for large contributions. 581 F.3d at 14. In this

case, however, defendants have identified such evidence at the federal level as to Super PACs.

SeeWilcox Decl. 18 (noting, inter alia, statement that donors would be able to meet White

House and Cabinet officials at Super PAC fundraiser); Lincoln Decl., Ex. A, at 20-27, 39-47

(quoting statements connecting donations to access). In any event, because of New Yorks

contribution limits, Super PACs are not now a feature of campaign finance or political party

dynamics at the state level, and thus the question is whether experience under the present law

confirms a serious threat of abuse, not whether record evidence of such abuse already exists.

Colo. Republican Fed. Campaign Comm., 533 U.S. at 457; see Ognibene, 671 F.3d at 188

(There is no reason to require the legislature to experience the very problem it fears before

taking appropriate prophylactic measures.). The evidence presented by defendants here plainly

confirms that the threat addressed by New York law is both real and serious and precludes

summary judgment for NYPPP.

CONCLUSION

The Court should deny plaintiffs motion for summary judgment and enter judgment for

the defendants.



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Dated: March 17, 2014New York, New York

JOHN M.SCHWARTZ

JANE GOLDBERGJOSHUA PEPPEREVA DIETZAssistant Attorneys GeneralBRIAN A.SUTHERLANDAssistant Solicitor General

Of counsel

ERIC T.SCHNEIDERMAN

Attorney GeneralState of New York

By: /s/ Joshua PepperJoshua PepperAssistant Attorney General

120 BroadwayNew York, NY [email protected]


Documents

2014-03-17 New York Progress and Protection PAC - Defs Memo of Law Opposing MSJ (53)