2nd Circuit Blasts Citizens United

     MANHATTAN (CN) – The 2nd Circuit unanimously found that the Supreme Court’s ruling in Citizens United v. Federal Election Commission does not entitle New York City lawmakers to collect political contributions from individuals and organizations that do business with the city.



     In a passionate concurring opinion, Judge Guido Calabresi lamented the legacy of Citizens United, in which a 5-to-4 majority held in 2010 that the First Amendment protects corporate-funded political broadcasts in elections.
     Blasting that notion, Calabresi wrote, “all is not well with the law.”
     “The High Court has told us that the First Amendment protects the right to speak through the use of money, but that the existence of this right does not prevent governments from enacting campaign finance regulations in furtherance of their interest in limiting actual or apparent corruption,” Calabresi wrote.
     Writing the 2nd Circuit’s majority opinion, Judge Paul Crotty said the New York City Charter Revisions Commission coined the term “pay-to-play” in a 1998 report, stating that there is “no doubt that these contributions have a negative impact on the public because they promote the perception that one must ‘pay-to-play.'”
     In 2006, the Campaign Finance Board, after public hearings and studies, found that more than 20 percent of the contributions in the 2001 and 2005 election cycles were from individuals and entities that did business with the city.
     “That year, the City passed Local Laws 15 and 17, which created a mandatory electronic filing system for lobbyists; required full lobbyist disclosure of all fundraising and consulting activities; banned all gifts from lobbyists to City Officials; and excluded contributions from lobbyists and the individuals identified on their statements of registration from the definition of ‘matchable contribution,'” the 2nd Circuit summarized.
     More than a dozen individuals and organizations filed a lawsuit challenging the new provisions in 2008.
     The plaintiffs were Republican politicians Tom Ognibene, Yvette Velazquez Bennett and Viviana Vazquez Hernandez; Democratic politicians Martin Dilan and Marlene Tapper; Robert Perez, the owner of Diamond Asphault Corp.; voters Fran Reiter, Denis Gittens, Oscar Perez and Sheila Andersen-Ricci; and the organizations Martina Franca Associates LLC, Reiter/Begun Associates LLC, the King’s County Committee of the New York State Conservative Party, and the New York State Conservative Party.
     On Feb. 6, 2009, U.S. District Judge Laura Taylor Swain threw out the suit, finding “that the challenged limits served a sufficiently important governmental interest-addressing the reasonable concern about actual and apparent corruption by those doing business with the City,” the 2nd Circuit wrote.
     On appeal, the plaintiffs hoped their case would get a boost from the Supreme Court’s Citizens United ruling.
     But last week, in a 72-page opinion, the 2nd Circuit ruled that the landmark decision did not help the plaintiffs’ case.
     “Although Citizens United stated that mere influence or access to elected officials is insufficient to justify a ban on independent corporate expenditures, improper or undue influence presumably still qualifies as a form of corruption,” the majority opinion states.
     Judge Debra Ann Livingston, in another concurring opinion, expressed concern about the effects the limits had on New York donors.
     “Thousands of New Yorkers are severely restricted in the amounts they may contribute or have matched as a result of these restrictions, some by virtue of no more than a family relationship or their leadership positions in institutions such as the Metropolitan Museum of Art or the Cathedral Church of St. John the Divine,” Livingston wrote.
     Calabresi used as an example a poor congregant, citing a Biblical parable to illustrate modern campaign finance: “As Jesus looked up, he saw the rich putting their gifts into the temple treasury. He also saw a poor widow put in two very small copper coins. ‘Truly I tell you,’ he said, ‘this poor widow has put in more than all the others. All these people gave their gifts out of their wealth; but she out of her poverty put in all she had to live on.'”
     Calabresi cited the parable in his conclusion, predicting that Citizens United one day will be viewed as similar to the rejection of one-person-one-vote: “What is at stake here – what everyone knows is at stake here – is what was recognized and expressed so directly, succinctly, and powerfully in the story of the widow’s mite. The ability to express one’s feelings with all the intensity that one has – and to be heard – is a central element of the right to speak freely. It is, I believe, something that is so fundamental that sooner or later it is going to be recognized. Whether this will happen through a constitutional amendment or through changes in Supreme Court doctrine, I do not know. But it will happen. Rejection of it is as flawed as was the rejection of the concept of one-person-one-vote. And just as constitutional law eventually came to embrace that concept, so too will it come to accept the importance of the antidistortion interest in the law of campaign finance.
     “It is with that faith in a better future, along with an understanding of the requirements of our flawed present, that I join the majority opinion.”

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