Tuesday, March 20, 2012
Contact: James Bopp, Jr.
Phone 812/232-2434; Fax 812/235-3685; [email protected]
In 2007, New York City created a blacklist. It singled out nearly 12,000 of its most prominent citizens and said that they were the most likely to try to bribe politicians with campaign contributions. So the City published their names on the Internet for everybody to see and reduced the amount of contributions they can make to their chosen candidates by 90%. Everybody else is allowed to give $2750 to candidates for City Council. But the blacklisted citizens are only allowed to give $250. And while everyone else can give $4,950 to candidates for mayor, the blacklisted citizens can only give $450.
This might make sense if the blacklisted people had actually ever tried to bribe politicians. But none had. In fact, for the previous nineteen years, New York City has not had a single instance of corruption tied to campaign contributions. The nearly 12,000 blacklisted people had always played by the rules, but the City punished them anyway.
Strangely, most of the people on the City's blacklist are not the type of people we normally consider untrustworthy or corrupt. For instance, Lee Bollinger, president of Columbia University, is on the list. So is Paul LeClerc, the president of the New York Public Library, and Donna Lieberman, the director of the New York Civil Liberties Union. The list has numerous leaders of nonprofits, hospitals, museums, churches, and yeshivas. They are all publicly fingered as untrustworthy and punished by having their candidate contribution limits reduced to less than one-tenth of everyone else's. And while everyone else's contributions are matched with public money, the blacklisted citizens' contributions are not matched.
In addition, the City banned all contributions from corporations, partnerships, limited liability corporations, and limited liability partnerships, and put all their executives on the blacklist. The City claimed it needed to do this to eliminate the influence of special interest groups. Hypocritically, though, the City still allows unions to make contributions, and union executives can give up to the much higher, regular limits. The City claims that businesses are more likely to try to bribe city officials in order to get contracts. But unions depend on city officials for their collective bargaining agreements. They have the same incentive as businesses to try to corrupt politicians. But the City still lets unions and its executives contribute up to the regular limits, and matches the executives' contributions with public money. Business contributions, however, are banned, and their executives' contributions are reduced more than ten times and not matched.
In 2008, a coalition of citizens subject to these draconian laws challenged them in court. Making contributions to candidates involves First Amendment political speech and association rights, so the coalition alleged that the law's restrictions violated their constitutional rights. Despite the obvious unfairness in the law, the trial court upheld it as constitutional. The coalition then appealed to the Second Circuit Court of Appeals, which likewise upheld the law.
In upholding the law, the Second Circuit disregarded a number of United States Supreme Court decisions. For instance, the Supreme Court has said that you cannot have different contribution limits for different groups of people unless there is a demonstrated need for the different limits. New York City doesn't have one, but the Second Circuit upheld the low limits for the blacklisted citizens anyway. Similarly, the Supreme Court has ruled that you cannot ban political speech on the basis of the identity of the speaker. New York City, though, bans all contributions from business organizations on the basis of their corporate identity. Furthermore, the Supreme Court has held that low contribution limits need special justification to be upheld, but the Second Circuit upheld them despite the fact that there has been no corruption for over 19 years under the regular contribution limits.
Yesterday, the coalition of citizens asked the Supreme Court to take their case. Their attorney, James Bopp, Jr, said that court of appeals cannot be allowed to defy the Supreme Court. “Lower courts have to follow the Supreme Court,” Mr. Bopp explained. “The Supreme Court has repeatedly ruled that if the government wants to limit candidate contributions, it has to demonstrate that there is an actual problem with corruption. New York City, though, doesn't have any corruption, because its regular contribution limits fixed that 19 years ago. So these extra-low contribution limits for just some citizens are unnecessary and, therefore, unconstitutional.”
Mr. Bopp also took issue with the way the City treats unions and business organizations differently. “The City claims that it needs to ban contributions from businesses because they might try to bribe city officials to be receptive to business interests. But what about the unions? They negotiate multi-billion dollar collective bargaining agreements with New York City. They have the same incentive to try to bribe officials, yet they are still allowed to make contributions.” Mr. Bopp explained that under the Constitution's guarantee of equal protection, the government cannot discriminate against corporations while giving preferential treatment to unions.
Mr. Bopp expressed his hope that the Supreme Court will take this case. “The Court agrees to hear only a small number of cases each year,” Mr. Bopp said. “But this is one that the Court needs to hear. It has important implications, not just for New York City, but for the whole country. After all, if New York City can blacklist and punish citizens that haven't done anything wrong, then any city or state can.”
The case is Ognibene v. Parkes. The petition asking the Supreme Court to take the case is available in PDF online at the James Madison Center's website, www.jamesmadisoncenter.org, under “Ognibene v. Parkes.” It can be accessed directly by following this link:
James Bopp, Jr. has a national federal and state election law practice with The Bopp Law Firm. He is General Counsel for the James Madison Center for Free Speech and former Co-Chairman of the Election Law Subcommittee of the Federalist Society.
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