New York's campaign finance limits are illegal

New York Post (opinion)

October 2, 2013

by Terence J. Pell

Get ready to see a major New York campaign-finance rule get tossed out by the courts.

The state’s limit on PAC donations, even when the PAC is spending independently of a campaign, is plainly unconstitutional.

For more than a quarter century, courts have been striking down state efforts to limit spending by individuals to speak about elections (independent of any campaign).

The reason is simple: A person has a right under the First Amendment to speak out about public issues. Public debate is improved when individuals are free to participate without government interference.

But New York law has a limit of $150,000 on donations to PACs.

New York Progress and Protection PAC, a political action committee formed to advocate independently for mayoral candidate Joe Lhota, has filed suit to get the limit tossed.

I’m president of the Center for Individual Rights, a public interest law firm with a long history of defending First Amendment rights, particularly in the area of elections.

We are the PAC’s co-counsel in the case.

We’re going to win, because everyone agrees that neither a PAC nor its individual donors are subject to limits so long as the PAC is independent of any political campaign.

Every court that’s looked at the question has ruled that states can’t limit individual donations to an independent PAC.

Yes, a state may limit contributions to a candidate or a campaign, so as to prevent a candidate from offering an illegal quid pro quo (such as a favorable vote) in return for a large donation. But the Supreme Court has been clear that independent expenditures do not give rise to corruption, or even the appearance of corruption.

There’s no link between the donor and the candidate, who neither receives money from the PAC nor has any control over its message. Since the PAC operates independently, no candidate has the need or interest in trading a favor for its support.

This has been well settled law since long before Citizens United v. FEC, in which the Supreme Court ruled that corporations are just as free of campaign limits as individuals.

Inexplicably, the New York Board of Elections is arguing that, while Citizens United freed independent committees from spending limits, it didn’t change limits on donations to these committees.

The argument is a stretch, to put it mildly. Since a state can’t directly limit a PAC’s independent expenditures, it cannot attack those same expenditures by limiting individual contributions to the PAC.

The only legitimate reason a state might have for limiting campaign contributions — limiting corruption — doesn’t apply to contributions to an independent committee. Nor is there even the chance of an appearance of corruption since contributions to an independent committee are twice removed from direct contributions to a candidate.

Tossing New York’s limit would also make the mayoral race more democratic.

One candidate, Bill de Blasio, now enjoys name recognition, a 50-point lead in the polls, and an almost overwhelming advantage in financial contributions. The other candidate, Lhota, has little name recognition, much less financial backing and is mostly unknown to city voters.

It’s absurd to claim that ending New York’s unconstitutional limits will produce a “gusher” of spending by outside individuals and groups that will unfairly benefit Lhota, much less harm New York voters. On the contrary, New York voters will get the benefit of a more evenly-matched race — one where ideas can count for more than de Blasio’s built-in advantages of clout and easy access to campaign contributions.

Yes, some donations to the PAC will come from out of state. But independent spending made possible by donors with no ongoing connection to New York politics poses even less of a threat of quid pro quo corruption. Such donors can’t possibly expect to benefit from New York City political favors.

So what is the Board of Elections afraid of? New York’s limits on donations to independent campaign committees are clearly unconstitutional. And the mayoral race would just as clearly benefit from the freer debate those independent donations would make possible.

Most important: The Empire State’s campaign-finance laws cannot continue to ration speech in violation of the First and Fourteenth Amendment right of individuals to engage in political expression free of government restriction.

Terry Pell is president of The Center for Individual Rights and co-counsel with Michael Carvin, partner at Jones Day, in the New York Progress and Protection PAC’s suit challenging New York’s campaign-finance law.