Lobbyist Fundraising and the Second Circuit

Perhaps the most significant aspect of the Second Circuit’s decision in Green Party of Connecticut v. Garfield, discussed in my last post, involves Connecticut’s ban on soliciting of campaign contributions by contractors and lobbyists.  In contrast to the ban on direct contributions, which the court found to be a peripheral First Amendment activity subject to the more lenient “closely drawn” level of scrutiny, the Second Circuit stated “a limit on the solicitation of otherwise permissible contributions prohibits exactly the kind of expressive activity that lies at the First Amendment’s ‘core.’”  Accordingly, it held that the ban on solicitations was subject to strict scrutiny, i.e., the restriction could only be upheld if it was “narrowly tailored” to further a “compelling interest.”  

            The district court had found that the government had a compelling interest in combating the threat posed by “bundling” of campaign contributions by contractors or lobbyists, particularly with respect to contributions from their employees or clients.  The danger is that “contractors and lobbyists will promise to deliver large number of coordinated contributions to a state official in exchange for political favors.”


            The court of appeals expressed some skepticism as to whether there was a compelling interest in stopping bundling.  The court seemed to feel that it was unlikely that bundling would lead to “quid pro quo” corruption (in other words, an actual agreement to exchange political favors for bundled contributions).  Instead, the court apparently viewed bundling as more analogous to independent expenditures, where the indirect benefit received by the candidate is viewed as insufficient to justify curtailment of First Amendment rights. 

            Even assuming the threat of bundling implicated a compelling interest, however, the Second Circuit concluded that the solicitation ban was not “narrowly tailored” to address that interest.  Without holding that any of these methods would necessarily survive strict scrutiny, the court identified several less restrictive alternatives to “address the perceived bundling threat.”  These included: (1) a direct ban on bundling itself; (2) a ban on large-scale efforts to raise funds, such as “a ban on state contractors organizing fundraising events of a certain size;” and (3) a ban on soliciting money only from certain individuals, such as banning contractors from soliciting money from employees and lobbyists from soliciting money from clients. 

            Accordingly, the court held that the solicitation ban violated the First Amendment with respect to both contractors and lobbyists.  It should be noted that this ruling, if it is followed by other circuits, would mean that federal laws to ban lobbyist fundraising face a high constitutional hurdle.  

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