Landmark Decisions for Good Government, Federal Courts Uphold Pay-To-Play Laws

To: Editorial Page Editors and Reporters

From: Laura MacCleery, Deputy Director of the Democracy Program at the Brennan Center for Justice at NYU School of Law

Pay-to-play, or the exchange of privileges for campaign contributions, is an endemic problem in many governments, and takes advantage of the reliance of candidates and officials on campaign contributions. Pay-to-play bans, like the ones recently upheld by the courts in Connecticut and New York City, prohibit those with direct interests in governmental decisions from effectively purchasing political results through campaign donations. On December 19, 2008, and February 6, 2009, two federal courts upheld pay-to-play regulations in Connecticut and New York City, respectively, finding the laws constitutional. The Brennan Center applauds these important victories and the courts’ recognition of important measures that break the nexus between corrupting campaign contributions and elected officials.

We urge you to editorialize and write in favor of these landmark decisions, which are both timely and set a powerful precedent for states considering similar policies. On the heels of Obama’s historic inauguration, readers are hungry to reclaim their faith in good government at the federal, state and local levels. For far too long, pay-to-play scandals have reinforced a cynical view of shady politicians. But pay-to-play bans have the power to reinvigorate public trust in government and to inspire the best in our politicians. And with the federal stimulus plan slated to pump more money into state and local governments, adding billions of dollars to state budgets, taxpayers must be confident that their interests will be protected.

Connecticut

Connecticut took a lead on routing out corrupt politics by enacting the strongest pay-to-play prevention rules in the nation, after suffering its own political corruption scandals. Lobbyists and other parties immediately challenged the Connecticut law in court. The Brennan Center for Justice at New York University School of Law and the State of Connecticut’s Office of Attorney General, with assistance from pro bono counsel Ira M. Feinberg of Hogan & Hartson, a New York law firm, successfully defended the pay-to-play provisions against constitutional challenge.

In a significant victory for campaign finance reform advocates everywhere, the federal district court in Connecticut upheld the strictest pay-to-play rules in the nation. In Green Party of Connecticut v. Garfield, Judge Stefan R. Underhill maintained that the contribution and solicitation bans of Connecticut’s Campaign Finance Reform Act (CFRA) did not violate the First Amendment and were justified by an anti-corruption interest.

Behind Connecticut’s Pay-to-Play Laws

The Connecticut legislature enacted the CFRA in 2005 against the backdrop of the conviction of former Governor John G. Rowland and several other state officials for exchanging campaign contributions for state contracts. To prevent further corruption and to restore faith in state politics, the legislature passed a series of campaign finance reform laws.

Under Connecticut law, lobbyists, state contractors and prospective state contractors are prohibited from making contributions to certain candidate committees for legislative and statewide offices, candidate-affiliated political action committees (PACs) and party committees.

In response, the trade association for lobbyists, a group of state contractors, their immediate family members and candidates challenged the bans, claiming they violated the First Amendment. This is a familiar argument. In a number of lawsuits around the nation challenging campaign finance reforms, advocates argue that money is the equivalent of speech, and that contribution limits infringe on First Amendment rights.

On December 19, 2008, Judge Underhill upheld the pay-to-play restrictions as constitutional. The Court explained that contribution and solicitation limits are constitutional unless they:

• "prevent candidates from amassing the necessary resources for effective campaign advocacy;”
• “magnify the advantages of incumbency;” or
• ”infringe on the contributor’s freedom to discuss candidates and issues” without achieving a sufficiently important government interest.

Connecticut’s pay-to-play prevention laws do not violate these guidelines.

Additionally, the Court’s opinion disputed political candidates’ claims that the bans violated their right to collect contributions. The Court found that:

Contributions from lobbyists and state contractors have historically never been substantial. Therefore, the absence of such funds would do little to impede a candidate from running effective campaigns. 

In Connecticut, lobbyist contributions tended to support incumbents and thus, the bans did nothing to magnify the advantage of incumbency.

Connecticut’s Reasonable Measures Are Constitutional

As Judge Underhill’s opinion recognized, the First Amendment presents a more flexible set of possibilities than absolutists would acknowledge. Although the bans do marginally infringe on Plaintiffs’ First Amendment rights by preventing them from engaging in the symbolic expression in support of a candidate, the Court held that the First Amendment should not prevent state and federal legislatures from taking reasonable steps to prevent pervasive corruption.

In a crucial insight, the Court took note of the many alternative avenues for communication that remain available despite the pay-to-play bans. From get-out-the-vote volunteering to posting yard signs to writing letters to the editor, there are many ways that lobbyists and state contractors remain free to show support for a candidate or political agenda. And as we have seen in the last election, these forms of political engagement can be just as meaningful, if not more so, than money.

The Court took into consideration polling data of both actual corruption and the appearance of corruption and concluded that the state’s anti-corruption interest in enacting the bans greatly outweighed any impact the bans would have on the First Amendment rights of contributors.

A Model for Other States to Prevent Pay-to-Play Scandals

Given the torrent of pay-to-play scandals in recent months, there is some comfort in Connecticut’s major decision. For one, the opinion will help ensure that there will never again be a Governor Rowland.

Connecticut’s pragmatic approach is a model for both state legislatures and judges trying to balance a healthy respect for First Amendment rights against the need to combat the recurring corruption that appears to be epidemic in our democratic institutions—local, state and federal. The federal stimulus bill will give state and local governments billions of dollars to add to state budgets. We should not need a continuous spectacle of politicians auctioning off public goods to remind us that there is a high price to pay for corruption—in both wasted tax dollars and heightened public cynicism about government. Both strong pay-to-play restrictions and voluntary public funding of elections are crucial reforms.

The Brennan Center has successfully defended state public financing laws in Arizona, Maine, and North Carolina and is currently defending challenges to Connecticut’s public funding system.

New York City

New York City’s Law Banning Pay-to-Play Also Held to Be Constitutional

To combat the widely held perception that lobbyists and contractors wielded undue influence over elected officials by way of their campaign contributions, the City of New York enacted important new campaign finance reforms in 2006 that:

• lowered the contribution limits for certain natural persons who have business dealings with the city, including lobbyists;
• extended the ban on corporate contributions to limited liability corporations and partnerships; and
• prohibited the matching of contributions, in the city’s public funding program, from contributors who have business dealings with the city, or are lobbyists or the spouse of a lobbyist.

Like the federal court in Connecticut, Judge Laura Swain of the Southern District of New York in the recent decision in Ognibene v. Parkes, No. 08 Civ. 1335 (2009), upheld the law. In her view, any infringement on the First Amendment rights of contractors and lobbyists was only marginal and was justified by the compelling state interest in combating the public’s perception of corruption.

For More Information

Brennan Center for Justice at New York University School of Law page on Connecticut’s ruling:
Green Party of CT v. Jeffrey Garfield, et al., case page.
Federal Court Upholds CT Pay-to-Play Ban, press release.

Other press
Judge Upholds Restriction, Capitol Watch