[EL] Ban on contributions by developers

[Barnaby Zall]

Wagner v. Fed. Election Comm’n, 793 F.3d 1 (D.C. Cir. 2015), is, as mentioned before, probably one of the most well-known. Note the voluminous explanations of grounds for considering contributions by contractors to be particularly prone to quid pro quo corruption. 

Ognibene v. Parkes, 671 F.3d 174 (2nd Cir. 2011), is a NYC version for people "doing business" with the City. Green Party of Connecticut v. Garfield, 616 F.3d 189 (2nd Cir. 2010) was an earlier version from the 2nd Cir. with a nice distinction between those prone to corruption and those who were not; surprisingly, lobbyists were not considered more likely to engage in corruption, but that follows the Supreme Court's analyses in McCutcheon and Citizens United of the potential for corruption. 
Which raises an important point: be careful about dates. Some cases before McCutcheon and Citizens United used a different evidentiary standard than some after. Although the Supreme Court just denied cert in Lair, No. 18-149, some of the briefing in that case (and in the similar Zimmerman v. City of Austin, Texas, No. 18-93), dealt with the evidentiary standards for a government to demonstrate the requisite state interest powerful enough to permit limiting First Amendment-protected rights of association. The 9th Cir. evidentiary standard of "risk" of quid pro quo corruption is a fairly loose interpretation, but is consistent with some other Circuits'. See, e.g., my brief in Lair:
 https://www.supremecourt.gov/DocketPDF/18/18-149/60507/20180823151526924_18-149%20Amicus%20Brief%20of%20Public%20Policy%20Legal%20Institute.pdf. As Rick  correctly pointed out on Monday, the denial of cert in Lair was more likely a function of the Court's current "quiet" phase post-Kavanaugh hearings, than of the Court's approval of the 9th Cir's particular standards. 
Which raises the question of whether forced association with a government (as in being required to submit plans for permits) is enough to define a class as having lower protections for the right of association.  What about permits for meetings or other mandatory applications to governments for official actions which might somehow be influenced if the applicant makes a contribution (say, the NRA, for a conference, or Planned Parenthood, for a government grant)? How about traffic tickets; would it depend on how big the infraction was? Note that the proposed LA ban applies only to medium and large developments; how will LA show that the risk of corruption from building a 4,000 sq. ft. house is bigger than from a 3,800 sq. ft. house (which mine will be once my garage/artist's studio is finished). And once my kitchen addition is added, my house will be more than 4,000 sq. ft, including all outbuildings; at what point would my project trigger the ban? When I build the last piece that makes the project over 4,000 sq. ft., or when I first approach the government for required permits on my house, which might be years before final approval (the planning process for my house began in 2000)? If any of these are true, how long does the ban last (Note that the LA proposal lasts for a year after final action on the proposed development application)? 
So, under Lair, I would expect LA to include sufficient record information prior to passage of its ban to support a reasonable inference of a "risk" of corruption from any developer submitting a proposal to the city for a development. And I would expect a constitutional challenge if it doesn't do a very good job. 

Barnaby Zall

-----Original Message-----
From: ben.sheffner <ben.sheffner at gmail.com>
To: law-election at UCI.edu <law-election at uci.edu>
Sent: Thu, Jan 17, 2019 10:47 am
Subject: [EL] Ban on contributions by developers

The Los Angeles City Council is considering imposing a ban on contributions to candidates for city office by real estate developers. Is anyone aware of similar regulations, and challenges to them?

Here's a description of the proposal from the LA Times:
https://www.latimes.com/local/lanow/la-me-ln-developer-donations-20190115-story.htmlUnder the proposal, real estate developers would be barred from giving to city candidates and officeholders once they have turned in an application that requires city approval or other action, provided that the request involves building or adding more than 4,000 square feet of floor area for residential projects or 15,000 square feet for commercial projects.The donation ban would last until a year after a final decision is made on the application, the proposal said. The restrictions would apply to the owner of the property being developed, including principals of any legal entity that owns the property.
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