408 F.Supp.3d 478
S.D.N.Y.2019Background
- In 2016 New York enacted an Ethics Law that included two donor‑disclosure provisions challenged here: N.Y. Exec. Law § 172‑e and § 172‑f.
- § 172‑e: a 501(c)(3) that makes an in‑kind donation > $2,500 to a 501(c)(4) that engages in lobbying must file a public funding report listing donors to the 501(c)(3) who gave > $2,500.
- § 172‑f: a 501(c)(4) that spends > $10,000 on "covered communications" (communications to ≥500 people that refer to and advocate positions of officials regarding potential or pending legislation) must file a public report listing donors who gave ≥ $1,000 (with a limited segregated‑account carve‑out).
- The Attorney General may withhold public disclosure on showing of likely threats, harassment, or reprisals, and entities may appeal; enforcement was stayed pending litigation and regulations were never promulgated.
- Plaintiffs (Citizens Union et al.) challenged both provisions as violating the First Amendment; the district court (Judge Cote) applied exacting scrutiny and granted plaintiffs' motion for summary judgment, holding §§ 172‑e and 172‑f facially invalid as overbroad and a poor fit with asserted governmental interests.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standard of review | Disclosure rules burden association/speech; apply exacting scrutiny | Disclosure rules are content‑neutral and are reviewed under exacting scrutiny (Gov agrees) | Court applied exacting (intermediate) scrutiny |
| § 172‑e (c3 → c4 in‑kind support disclosure) | Unconstitutionally burdens donors/associational privacy; too attenuated from lobbying/election risks | Furthers informational, anti‑corruption, and enforcement interests (and AG exemption mitigates burden) | Facial invalid: requirement is a poor fit; sweeps far beyond disclosures historically upheld; exemption insufficient |
| § 172‑f (c4 "covered communications" disclosure) | Compels donor ID for broad issue advocacy (including positions on "potential" legislation), chilling anonymous speech and association | Furthers informational interest in revealing funders of issue advocacy/undue influence; segregated‑account rule and AG exemption limit burden | Facial invalid: statute reaches pure issue advocacy (not just electioneering or direct lobbying), overbroad and poorly tailored |
| Exemption / administrative safeguards | After‑the‑fact exemptions do not cure chilling or poor fit | AG exemption and future regulations can narrow burdens | Court: after‑the‑fact exemption cannot cure constitutional overbreadth; insufficient to save statutes |
Key Cases Cited
- Talley v. California, 362 U.S. 60 (1960) (struck down mandatory identification for anonymous leaflets; anonymity protected)
- McIntyre v. Ohio Elections Comm'n, 514 U.S. 334 (1995) (invalidated compelled author identification for political leaflets; upheld tradition of anonymous advocacy)
- Buckley v. Valeo, 424 U.S. 1 (1976) (upheld narrow financial‑disclosure regime tied to express advocacy; articulated informational, anti‑corruption, and enforcement interests)
- Citizens United v. Federal Election Comm'n, 558 U.S. 310 (2010) (upheld disclosure for electioneering communications to inform electorate; disclosure is less restrictive alternative)
- McConnell v. Federal Election Comm'n, 540 U.S. 93 (2003) (recognized broader disclosure regimes for electioneering communications)
- NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958) (protected membership lists where disclosure would likely lead to reprisals)
- Brown v. Socialist Workers '74 Campaign Comm. (Ohio), 459 U.S. 87 (1982) (as‑applied protection for minor parties where disclosure would likely cause harassment)
- United States v. Harriss, 347 U.S. 612 (1954) (upheld narrow lobbying disclosure statute limited to direct lobbying of legislators)
- Vermont Right to Life Comm., Inc. v. Sorrell, 758 F.3d 118 (2d Cir. 2014) (upheld Vermont disclosure rules that were cabined to electioneering/mass‑media contexts)
- Citizens United v. Schneiderman, 882 F.3d 374 (2d Cir. 2018) (upheld NY AG’s collection of Schedule B for charities where AG did not publicize donor lists; recognized difference if public dissemination were at issue)