The Case Against New York City’s Pay-to-Play Reforms

Earlier this week, the long expected challenge to New York City’s recent campaign finance law amendments was filed in the U.S. District Court for the Southern District of New York. Ognibene v. Schwarz includes free speech, equal protection and Voting Rights Act challenges to the “doing business” contribution limits and other elements of NYC’s campaign finance and lobbying laws. The plaintiffs include candidates, political parties, potential contributors, business owners, lobbyists, limited liability companies, and voters.

One count of the complaint maintains that the doing business contribution limits unconstitutionally burden the First Amendment rights of the family members and employees of lobbyists. Is this true?

In brief (and without the citations), the doing business limits apply to every “lobbyist,” as that term is defined in the NYC lobbying law: “every person or organization retained, employed or designated by any client to engage in lobbying.” But neither the lobbying law nor the campaign finance law extend these contribution limits to contributions by the spouse, domestic partner or unemancipated children of the lobbyist. Nor do these contribution limits cover any of the lobbyist’s employees, or their spouses, domestic partners or children. These persons may be treated as lobbyists under the Campaign Finance Act, but only for the purpose of defining their political contributions as not matchable with public funds – which is a separate cause for complaint in the lawsuit.

Rather than limiting family member contributions, the law directs the Mayor, City Council, and Campaign Finance Board to form a task force to study the feasibility of subjecting spouses, domestic partners and unemancipated children to the doing business contribution limits.

So right now it is a bit premature for the complaint to maintain that the doing business contribution limits reach “even the speech and associational rights of such people as far removed from business dealings with the City as a secretary of a lobbyist, the spouse of an employee of a lobbyist, and the unemancipated child of the spouse of an employee of a registered lobbyist.” While other elements of the law arguably have this effect, the current law’s contribution limits simply do not.

Lawyers Lobbying Municipal Officials

When is it improper for an attorney representing a private client to communicate with a municipal official? This topic was explored at a recent panel discussion presented by the Municipal Law Section of the New York State Bar Association in which I participated.

Lawyers representing private clients often make lobbying communications at the municipal level, which may subject the attorney to registration and reporting requirements of the NYS Lobbying Act and/or applicable local law (such as New York City’s lobbying law). We debated whether a lawyer’s lobbying communications to public officials are, or should be, restricted by the Disciplinary Rule of the Lawyer’s Code of Professional Responsibility that prohibits lawyer contacts with parties represented by another attorney (in this case a municipal attorney or outside counsel retained by the municipal entity).

Under the no-contact rule, the questions to be examined are:

(1) Is the municipal official considered to be a “party” in the matter that is the subject of the communication?

(2) Is the municipal official represented by a lawyer in that matter?

(3) Does or should the private lawyer know that the municipal official is represented by counsel?

(4) Regardless of any of the above, is the communication authorized by law? For example, is it protected under the First Amendment right to petition government?

Implementation or Evolution?

The Campaign Finance Board recently posted materials on its website that summarize amendments to the NYC Campaign Finance Act adopted in 2007. In several instances, we note, the website summary differs from the language of the new law.

For example, most of the legislative changes took effect on December 31, 2007 or January 1, 2008, without provision for retroactive application. One change reduces the portion of matchable contributions that candidates may claim toward the threshold for qualifying to receive public funds from $250 to $175.

The CFB summary states that only the first $175 of a contribution counts toward meeting the threshold – implying that this reduced cap applies to all contributions received for the 2009 election. But according to the law, the reduction applies only for contributions received on or after December 31, 2007. In other words, up to $250 of each matchable contribution received before December 31, 2007 should count toward the qualifying threshold.

In another instance, the summary deviates from the law in describing exemptions from the spending limit, a topic we previously discussed in some detail.

An administrative agency has a duty to follow the law, as does the regulated community. Unfortunately, deviation from this duty often leads to conflict.

Doing Business Database Goes Live

The City’s doing business database (DBDB) has gone live.

As previously reported here, the New York City Campaign Finance Board certified the first phase of the DBDB last month.  As of February 2, 2008, entities and persons listed in the DBDB are now subject to reduced contribution limits and the contributions are not matched with public funds.  The reduced limits are as follows:

  • Mayor: $400
  • Comptroller: $400
  • Public Advocate: $400
  • Borough President: $320
  • City Council: $250

Lobbying in NYC: The First Year (After the New Laws)

The New York City Clerk’s office recently issued a special report commemorating the first year of enforcing the City’s new lobbying laws. Among other developments, the City penalized lobbyists and their clients over $326,000, more than $301,000 of which was for missing reporting deadlines. The report also details the commencement of a Random Audit Program, wherein lobbying firms are randomly selected for an audit. Indeed, 30 firms have been selected for 2008 – notices are imminent.

Below is a calendar of lobbying filing deadlines for the City and the State Commission on Public Integrity.

Deadline

City Clerk

Commission on Public Integrity

Client Filing

Jan. 1, 2008

  • *

Jan. 15, 2008

  • *

  • *

March 15, 2008

May 15, 2008

July 15, 2008

  • (State Only)

Sept. 15, 2008

Nov. 15, 2008

Jan. 15, 2009

* The City Clerk’s Office has issued an alert advising that these three reports are now due on February 15, 2008.

Governor Corzine Signs Bill Exempting Non-Profits from Chapter 271 Annual Disclosure Requirement

Yesterday was supposed to be the day that non-profit organizations receiving aggregate payments of $50,000 or more through government contracts in New Jersey filed their Chapter 271 Annual Disclosure Statements with ELEC for calendar year 2006. Instead, Governor Corzine signed into law S-3025/A-4660, which exempts non-profit entities from the Chapter 271 Annual Disclosure filing requirement.

Although this change in law provides relief to non-profit entities that have been grappling with the impact that the annual disclosure requirement would have on their organizations, the Governor’s signature does not have any impact on the for profit community.  For profit entities, including for profit subsidiaries of non-profit entities, are still subject to Chapter 271’s annual disclosure requirement.  The next Chapter 271 annual disclosure is due on March 30, 2008 and covers calendar year 2007.

NJ Legislature Exempts Non-Profits from Annual Disclosure

Yesterday both houses of the NJ Legislature passed a bill that clarifies that nonprofit entities are not subject to Chapter 271’s annual disclosure requirement. As was previously chronicled here, here and here, the New Jersey Election Law Enforcement Commission has been grappling with this issue for quite some time.  The bill now awaits the Governor’s signature.

Pennsylvania Supreme Court Upholds Campaign Finance Law

The Pennsylvania Supreme Court recently issued a decision which upholds the constitutionality of Philadelphia’s Campaign Finance Law. The law had been challenged by local officials who alleged that the Philadelphia campaign finance law was preempted by the State’s election law. In a 5-2 decision written by Justice Baer, the Court held that the mere enactment of legislation in the field was insufficient to find preemptive intent on the part of the State Legislature. Accordingly, Philadelphia was free to enact its own limits.

Philadelphia’s campaign finance law limits contributions to $2,500 per year from individuals. Additionally, the City’s pay-to-play laws prohibit the awarding of non-competitively bid contracts to those individuals who contribute more than $2,500 per year.

NYC Campaign Finance Board Certifies First Phase of “Doing Business” Database

At a meeting held yesterday, the Campaign Finance Board announced its certification of the first phase of the “doing business” database.

Pursuant to Local Law 34 passed in July 2007, city candidates are restricted from accepting contributions from persons deemed to be “doing business” with the city. The restricted contribution limits take effect 30 days after each phase of certification; thus restricted limits apply to those included in this phase of the database on February 2, 2008. The certified component of the database contains information about entities and individuals holding City contracts, franchises, and concessions, as well as registered City lobbyists.

The CFB’s full report can be found here.

COIB Advisory Opinion: Invitations to Events Sponsored by Not-for-Profit Organizations that are NYC Lobbyists

When a not-for-profit organization sponsors an event, may it invite New York City officials and employees? In a recent advisory opinion, the NYC Conflicts of Interest Board (COIB) addressed how the local law prohibiting gifts by City lobbyists affects these invitations. Continue reading

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