[EL] Breaking News: Federal Court Refuses to Enjoin NY Ban on Unlimited Contributions to Independent PACs

[Fredric Woocher]

Joe:

I think you have misconstrued the court's "amplifying the voice" analysis.  The court was not using that point as a justification for defending the constitutionality of the restriction on the merits.  The court notes that given the procedural posture and wording of the complaint, that it is not clear that any injunction the court might issue could apply to independent expenditure committees other than NYPPP, and that as a result, those other PACs might be limited in the contributions they can receive with respect to the upcoming election, while NYPPP (if the injunction were to issue) would not be so limited.  The court was therefore referring to NYPPP's voice being unfairly amplified vis a vis other PACs wanting to participate in this election due to the nature and timing of the injunction request, not in the context of the underlying constitutional analysis.

And as far as the "deciding to speak quickly enough" point, I think a reading of the court's decision makes it pretty clear that at bottom, the court did not believe as a factual matter that this really was an instance of the plaintiffs suddenly deciding that they wanted to engage in more speech.  (See p. 13 ["But that made-up explanation is so at variance with what actually occurred that it calls into question NYPPP's other factual assertions."].)

I think you're likely correct that the limit will ultimately be held to be unconstitutional, but that's a different issue than whether it is fair to suddenly change the rules of the election for one party and not for others in the waning days/weeks of an election, which is what the district court was faced with deciding at this point.

Fredric D. Woocher
Strumwasser & Woocher LLP
10940 Wilshire Blvd., Ste. 2000
Los Angeles, CA 90024
fwoocher at strumwooch.com<mailto:fwoocher at strumwooch.com>
(310) 576-1233
From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Joe La Rue
Sent: Thursday, October 17, 2013 11:19 AM
To: Election Law Listserve
Subject: [EL] Breaking News: Federal Court Refuses to Enjoin NY Ban on Unlimited Contributions to Independent PACs

There are at least two problems with the court's analysis.  First, it penalizes the plaintiff because, in the court's view, he didn't decide to speak quickly enough.  The court seems to suggest that the plaintiff should have challenged the law right on the heels of Citizens United, rather than waiting four years.  In any event, he should have challenged the law earlier in this political cycle if he wanted to speak.

The problem with that, of course, is that politics is a fast-moving game.  Someone speaks, someone else wants to respond with speech.  Someone wins a primary, someone wants to speak in his support in the general election.  And in both cases, the speaker did not realize he would want to speak until the triggering event occurred.

But according to this court, the plaintiff should have known earlier, and decided to speak earlier.

The second obvious, screaming problem with this decision is that the court expressed concern about an injunction "amplifying the voice" of some groups over others.  But this is merely a re-working of the old "leveling the playing field" argument that has been rejected by the Supreme Court as a rationale for restricting speech.  It's not a valid interest for the government.  It should not be a valid interest for a court, either.

What's interesting to me is that the Court obviously recognized that the plaintiffs will ultimately win this lawsuit.  The Court did not conduct a "likelihood of success on the merits" analysis, but rather focused only upon the balance of hardships.  The plaintiffs will still likely win.  Of course, by then, it will be too late for their speech to make any difference, once again proving the old adage that justice delayed is justice denied.


Joe
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Joseph E. La Rue
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