Peter DePAUL, Petitioner v. COMMONWEALTH of Pennsylvania and the Pennsylvania Gaming Control Board, Respondents.
969 A.2d 536
Supreme Court of Pennsylvania.
Decided April 30, 2009.
Argued May 13, 2008.
Owen W. Larrabee, Esq., Karl Baker, Esq., Jeffrey Paul Shender, Esq., Defender Association of Philadelphia, Philadelphia, for Daniel White.
BEFORE: CASTILLE, and SAYLOR, EAKIN, BAER, TODD, McCAFFERY and GREENSPAN, JJ.
PER CURIAM.
ORDER
The appeal is dismissed as having been IMPROVIDENTLY GRANTED.
969 A.2d 536
Peter DePAUL, Petitioner
v.
COMMONWEALTH of Pennsylvania and the Pennsylvania Gaming Control Board, Respondents.
Supreme Court of Pennsylvania.
Argued May 13, 2008.
Decided April 30, 2009.
Calvin Royer Koons, Thomas W. Corbett, Jr., Office of Attorney general, for Com.
Francis T. Donaghue, Gaming Control Board, Calvin Royer Koons, Office of Attorney General, for Pennsylvania Gaming Control Board.
OPINION
Chief Justice CASTILLE.
Petitioner, Peter DePaul, has filed a verified petition in the nature of a complaint seeking declaratory judgment and injunctive relief, challenging the constitutionality of Section 1513 of the Pennsylvania Race Horse Development and Gaming Act,
Concurrently with PEDP‘s application for a Category 2 slot machine license, DePaul applied to the Board for a gaming license as a “key employee qualifier” of PEDP. Thereafter, and effective November 1, 2006, the Gaming Act was amended, and the term “key employee qualifier” was replaced with the term “principal.”5 It is undisputed that DePaul qualifies as a principal under the Gaming Act. Section 1513(a) of the Act, which is entitled “Political influence,” among other things, absolutely “prohibit[s]” principals, along with other classes of
During his entire adult life, DePaul asserts that he has actively supported candidates for public office in Pennsylvania, from governor to township supervisor, who, in his opinion, would serve the best interests of the Commonwealth. DePaul asserts that between January 13, 2006 and April 21, 2006, while PEDP‘s and his own license applications were pending, he was unaware that Section 1513‘s absolute ban applied to individuals who held any ownership interest, even an indirect ownership interest, in a slots license applicant such as PEDP.
On May 9, 2006, DePaul first learned that Section 1513‘s ban applied to applicants for key employee qualifier licenses and individuals who own indirect ownership interests in license applicants. DePaul promptly contacted the candidates and organizations to rescind his contributions and reported making the contributions and their rescission to the Gaming Control Board. On June 15, 2006, DePaul received an inquiry from the Board‘s Bureau of Investigations and Enforcement (“BIE“).7 DePaul responded on June 21, 2006, informing BIE that all contributions had been refunded to him. BIE and DePaul then entered into negotiations regarding a consent decree. On December 4, 2006, the Board approved a consent decree entered into by DePaul, PEDP and the Board. The consent decree provided that, based upon DePaul‘s apparent violation of Section 1513(a)‘s total ban on contributions, DePaul and PEDP would each pay $100,000 to the Commonwealth. The decree also set forth procedures and requirements designed to ensure DePaul‘s and PEDP‘s future compliance with Section 1513.
Due to DePaul‘s continued desire to make political contributions and attend political events such as dinners, receptions and candidate meetings, all of which require a purchased ticket to attend, he filed a verified petition seeking a declaration that Section 1513 is unconstitutional under the Pennsylvania Constitution because it violates his inherent rights of political expression and association, and requesting an order enjoining the enforcement of Section 1513. As noted, this Court possesses exclusive jurisdiction over this constitutional
Broadly stated, Count I of DePaul‘s verified petition contends that political contributions represent speech and association protected by Article I, Sections 7 and 20 of the Pennsylvania Constitution, which, he states, provide broader protections for freedom of speech and association than do their counterparts in the United States Constitution. In support of this contention, DePaul cites to Pap‘s A.M. v. City of Erie, 571 Pa. 375, 812 A.2d 591, 605 (2002) (“Pap‘s II“) (Article I, Section 7 provides broader protection for freedom of expression than First Amendment of federal constitution), and Commonwealth v. Tate, 495 Pa. 158, 432 A.2d 1382, 1387 (1981) (state constitutional rights may be more expansive than federal counterparts). DePaul claims that, in order to pass constitutional muster, an absolute ban on political contributions must be “narrowly tailored” and must serve a compelling government interest, citing Commonwealth v. Wadzinski, 492 Pa. 35, 422 A.2d 124, 130 (1980), a First Amendment case in which this Court applied strict scrutiny. DePaul submits that Section 1513‘s ban does not pass this test.
Regarding the specifics of Section 1513‘s ban, DePaul notes that Section 1102 of the Gaming Act reflects a legislative intent to “prevent the actual or appearance of corruption that may result from large campaign contributions,” and emphasizes the word “large.” Section 1513, however, bans all contributions, regardless of amount, thereby depriving a potential contributor of his freedom of political association. DePaul further claims that Section 1513 is overly broad because it prohibits contributions to candidates for office even where there is no connection between the candidate and licensed gaming. DePaul cites as an example of the disconnection his contribution to a candidate for the Philadelphia Register of Wills, which he characterizes as “a political office without the least remote connection to the regulation of licensed gambling in the Commonwealth.” Verified Petition, ¶ 41. DePaul also contends that the General Assembly imposed Section 1513‘s ban without a scintilla of evidence suggesting a connection in
In Count II of the petition, DePaul claims that Section 1513 violates Article I, Section 26 of the Pennsylvania Constitution, which establishes prohibitions on unlawful or baseless discrimination against persons in their exercise of civil rights. DePaul contends that Section 1513 unlawfully and irrationally discriminates against persons having a broad range of associations to licensed gaming, denying them the right to participate in the political process. The outright ban, he alleges, will not enhance the comprehensive regulatory safeguards built into the Gaming Act and is inconsistent with the federal and state commitment to permit all persons to participate actively in the democratic process.8
Turning to the current briefing, we begin with DePaul‘s claim that Section 1513 violates Article I, Section 7 of our Constitution, which provides:
The printing press shall be free to every person who may undertake to examine the proceedings of the Legislature or any branch of government, and no law shall ever be made to restrain the right thereof. The free communication of thoughts and opinions is one of the invaluable rights of man, and every citizen may freely speak, write and print on any subject, being responsible for the abuse of that liberty. No conviction shall be had in any prosecution for the publication of papers relating to the official conduct of officers or men in public capacity, or to any other matter
proper for public investigation or information, where the fact that such publication was not maliciously or negligently made shall be established to the satisfaction of the jury; and in all indictments for libels the jury shall have the right to determine the law and the facts, under the direction of the court, as in other cases.
DePaul then argues that it is settled law that political contributions constitute expressive conduct protected by Article I, Section 7, and that contribution and expenditure limitations for political campaigns implicate the fundamental freedoms of political expression and political association. DePaul cites to Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (per curiam), and Randall v. Sorrell, 548 U.S. 230, 126 S.Ct. 2479, 165 L.Ed.2d 482 (2006) for the latter proposition. Section 1513, he contends, constitutes the most severe of restrictions on the ability to contribute to any political candidate or party in Pennsylvania by any individual who holds or has applied for a gaming license in Pennsylvania or in another
No such conflict exists in Pennsylvania, according to DePaul. This is so because Pap‘s II suggests that this Court should apply a strict scrutiny standard where the restriction (here, a statute) is on expressive conduct. In Pap‘s II, this Court applied strict scrutiny to an ordinance which totally banned nudity in the City of Erie in any public place, holding that restrictions on expression or expressive conduct are subject to strict scrutiny when challenged under Article I, Section 7. Even if Pap‘s II did not explicitly establish that strict scrutiny applies to restrictions on political contributions, De Paul notes that the Court in that case certainly declined to apply an intermediate level of scrutiny to an Article I, Section 7 challenge due, in part, to the fact that the U.S. Supreme Court had been unable to reach a majority consensus respecting the level of scrutiny to be applied in similar federal challenges. Likewise, DePaul claims, the Supreme Court‘s decision in Buckley resulted in disagreement over the level of scrutiny that should apply to cases involving limitations on campaign contributions.9 Given the similarity in circum-
DePaul next posits that Section 1513 cannot survive strict scrutiny because it is not narrowly drawn to accomplish a compelling state interest, as required by Pap‘s II. The Gaming Act, according to DePaul, was enacted without any investigation regarding whether the gaming industry, which is heavily regulated, posed any risk of political corruption or would be subject to any undue influence by individuals making political contributions. Thus, he concludes, there is no legislative record to support a compelling state interest in preventing actual corruption or the appearance of corruption arising from any and all political contributions. DePaul also takes issue with the Commonwealth‘s suggestion in its answer to the verified petition that the General Assembly could rely on the reported experience of other states with legalized gambling rather than creating a record of its own to support Pennsylvania‘s outright ban on political contributions. Specifically, DePaul points to the nineteen states other than Pennsylvania that have some form of legalized gaming or “racinos,” only five of which have sought to ban political contributions from individuals involved in the gaming industry.1011
For similar reasons, DePaul claims that Section 1513 violates the equal protection and non-discrimination clauses of the Pennsylvania Constitution (Article I, Sections 1 and 26) because it impinges on the fundamental right of freedom of expression. As such, DePaul urges this Court to apply strict scrutiny, a test which Section 1513 cannot survive because it is not narrowly tailored to serve a compelling state interest. Finally, DePaul argues that, even if this Court were to apply intermediate or heightened scrutiny, Section 1513 does not serve “important governmental interests” and “the discriminatory means employed” via the total ban are not “substantially related to the achievement of those objectives,” citing Nevada Department of Human Resources v. Hibbs, 538 U.S. 721, 728 (2003). This is so, DePaul argues, because the General Assembly failed to compile a record of evidence to justify an absolute ban on political contributions.
The Commonwealth argues in response that, while the right to make political contributions implicates Article I, Section 7,
The Commonwealth recognizes that its compelling government interest/narrowly drawn statute paradigm is substantially the same as Pap‘s II‘s strict scrutiny test. But, the Commonwealth argues, this statute survives such scrutiny. The Commonwealth maintains that the interest at issue is the prevention of public corruption and/or the appearance of public corruption that could result from permitting gaming licensees and highly placed gaming personnel to contribute to political parties, committees and candidates for public office, as well as maintaining public confidence in the proper regulation of the gaming industry. Again citing to Nixon, the Commonwealth claims that the Supreme Court there found limits on contributions to candidates for public office to be constitutional, recognizing the equal concerns of corruption and the impact of the appearance of corruption as both potentially affect public confidence in our system of government. 528 U.S. at 388-89, 120 S.Ct. 897. Those concerns, according to the Commonwealth, are present here where high-
The Commonwealth looks to decisions from other jurisdictions considering federal First Amendment challenges that have found the government interest in banning contributions by certain individuals involved in the gaming industry to be compelling. See Petition of Soto, 236 N.J.Super. 303, 565 A.2d 1088 (App.Div.1989), certif. denied, 121 N.J. 608, 583 A.2d 310 (1990), cert. denied, 496 U.S. 937, 110 S.Ct. 3216, 110 L.Ed.2d 664 (1990) (compelling government interest); Casino Ass‘n of La. v. State ex rel. Foster, 820 So.2d 494 (La.2002) (sufficiently important government interest). Further, the Commonwealth argues, it was unnecessary for the General Assembly to compile its own legislative findings respecting the important governmental interest at issue because other jurisdictions have generated studies on the same question, and the U.S. Supreme Court has found the experience of other jurisdictions to be relevant in evaluating freedom of expression challenges. Brief for Respondent at 9, (citing Pap‘s A.M. v. City of Erie, supra). The Commonwealth also notes that the link between the gaming industry and public corruption or the appearance of corruption is not novel. Thus, in Soto, the New Jersey Appellate Division found a compelling state interest in New Jersey‘s blanket ban on political contributions by those involved in the gaming industry based upon “a longstanding and strong sensitivity to the evils traditionally associated with casino gambling when it is unregulated, and even when there is regulation, there is a continued sensitivity to the maintenance of the integrity of the process, and in particular, the regulatory process.” Soto, 565 A.2d at 1093.
The Commonwealth also asserts that Section 1513‘s outright ban is narrowly drawn to further the government interest of preventing corruption or the appearance of corruption in the regulation of the gaming industry. Section 1513, according to the Commonwealth, does not reach conduct more traditionally regarded as speech, such as joining political committees and groups, participating in their activities, or speaking on public
Finally, the Commonwealth argues that the Gaming Act does not discriminate against casino licensees or principals, etc. Because the test for an equal protection claim is essentially the same as a free speech claim—whether there is a compelling state interest and the law is narrowly drawn to serve that interest—the Commonwealth contends that Section 1513 survives attack under both Article I, Section 7 and Article I, Section 26.
It is axiomatic that: “[A]ny party challenging the constitutionality of a statute must meet a heavy burden, for we presume legislation to be constitutional absent a demonstration that the statute ‘clearly, palpably, and plainly’ violates the Constitution.” Konidaris v. Portnoff Law Associates, Ltd., 598 Pa. 55, 953 A.2d 1231, 1239 (2008) (citation omitted). The presumption that legislative enactments are constitutional is strong. Commonwealth v. McMullen, 599 Pa. 435, 961 A.2d
Pap‘s II emphasized that the history of Article I, Section 7 in Pennsylvania is deep and the protections afforded freedom of expression by that provision longstanding:
The protections afforded by Article I, § 7 thus are distinct and firmly rooted in Pennsylvania history and experience. The provision is an ancestor, not a stepchild, of the First Amendment. Nor did Pennsylvania‘s protection of freedom of expression remain dormant until the First Amendment became applicable to the states. In addition to the fact that we must assume that Pennsylvania legislators, executives, and judges were all true to their oaths of fidelity to our Constitution, and thus were careful to guard against encroachment, this Court has not been hesitant to act to ensure these fundamental rights.
812 A.2d at 605. This Court has found that Article I, Section 7 provides broader protections of expression than the related First Amendment guarantee in a number of different contexts. See id. at 611-12 (nude dancing entitled to greater protection under Pennsylvania Constitution); Commonwealth, Bureau of Prof‘l & Occupational Affairs v. State Bd. of Physical Therapy, 556 Pa. 268, 728 A.2d 340, 343-44 (1999) (commercial speech in form of advertising by chiropractors entitled to greater protection so long as not misleading); Ins. Adjustment Bureau v. Ins. Comm‘r, 518 Pa. 210, 542 A.2d 1317, 1324 (1988) (Article I, Section 7 does not allow prior restraint or other restriction of commercial speech by governmental agen-
Pap‘s II also made clear that, when protected expression is at issue, strict scrutiny is the appropriate measure of a governmental restriction:
We also independently hold, pursuant to Article I, § 7, that an intermediate level of scrutiny, such as is set forth in United States v. O‘Brien, [391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968)], is inappropriate where expressive conduct such as the nude dancing at issue here is involved. Our experience in this case convinces us of the wisdom of our observations in Insurance Adjustment Bureau [v. Insurance Commissioner, 518 Pa. 210, 542 A.2d 1317 (Pa. 1988)], of the perils in the intermediate scrutiny test when protected expression is at issue. We conclude that regulations aimed at barring nude dancing, no less than regulations of protected commercial speech, require that we “tread carefully where restraints are imposed ... if there are less intrusive, practicable methods available to effect legitimate, important government interests.” 542 A.2d at 1324. Although the expression at issue here is not political speech (as it is not in the commercial speech arena), nevertheless we are satisfied that it is communication within the contemplation of Article I, § 7. It is hardly onerous to require that a regulation that would seek to govern such expression, offered in a closed establishment to consenting adult patrons, be accomplished by a narrower, less intrusive method than the total ban on expression adopted here.
Id. at 612; see also In re Condemnation by Urban Redevelopment Auth. of Pittsburgh, 590 Pa. 431, 913 A.2d 178, 189
Preliminarily, we note that this Court has never explicitly addressed the question of whether political contributions constitute protected expression. The Commonwealth, however, does not dispute that the answer is affirmative, see Brief for Respondent at 9 (“DePaul‘s political contributions clearly implicate a right under Article I, § 7“), and we have no doubt that protected expression is implicated. In this regard, we note our agreement with the Commonwealth‘s argument that reference to First Amendment authority remains instructive in construing Article I, Section 7, and the First Amendment cases waste little time in concluding that limitations upon political contributions implicate freedom of expression. Thus, in its discussion of the effect of limitations on the size of contributions, the U.S. Supreme Court in Buckley noted:
A contribution serves as a general expression of support for the candidate and his views, but does not communicate the underlying basis for the support. The quantity of communication by the contributor does not increase perceptibly with the size of his contribution, since the expression rests solely on the undifferentiated, symbolic act of contributing. At most, the size of the contribution provides a very rough index of the intensity of the contributor‘s support for the candidate. A limitation on the amount of money a person may give to a candidate or campaign organization thus involves little direct restraint on his political communication, for it permits the symbolic expression of support evidenced by a contribution but does not in any way infringe the contributor‘s freedom to discuss candidates and issues.
We agree with the Commonwealth that consideration of the experience of other jurisdictions considering similar restrictions on expression may be helpful in assessing the importance of the asserted governmental interest and the relationship between the governmental interest itself and the means of advancing that interest. DePaul identifies nineteen states, in addition to Pennsylvania, with some form of legalized casino gambling, a number which does not include those states with only tribal casinos, lotteries, pari-mutuel wagering, or charitable gaming. There are eleven states (plus Pennsylvania) with commercial casinos: Colorado, Illinois, Indiana, Iowa, Louisiana, Michigan, Mississippi, Missouri, Nevada, New Jersey, and South Dakota. Three of those states (Indiana, Iowa, Louisiana), like Pennsylvania, have approved “racinos”14 as
The vast majority of these nineteen states—fourteen: Colorado, Delaware, Florida, Illinois, Maine, Mississippi, Missouri, Nevada, New Mexico, New York, Oklahoma, Rhode Island, South Dakota and West Virginia—do not regulate political contributions by individuals involved in the gaming industry.15 The remaining five states have statutes banning specified individuals associated with the gaming industry from making political contributions in any amount. However, these states take different approaches concerning which people involved in the industry are subject to the total ban on political contributions.
Three of the states with Indiana, Iowa and Louisiana—are similar to Pennsylvania in that they have both commercial casinos and racinos, while the other two, Michigan and New Jersey, permit only commercial casinos. Indiana targets a fairly narrow spectrum of people—owners, officers in a corporate entity with an ownership interest or licensees of a gaming entity—and prohibits contributions to candidates for state or local office and committees organized by a candidate, political party or legislative caucus of the state house or senate.
Of the five states that absolutely ban political contributions by gaming licensees and varying other individuals involved in the gaming industry, only two have produced appellate court decisions on the constitutionality of the bans: both the Supreme Court of Louisiana and the New Jersey Superior Court, Appellate Division, upheld the bans in the face of First Amendment challenges. Before considering those decisions, we note that the New Jersey ban would not apply to a person such as DePaul, who is neither the licensee, nor a casino officer, director, holding company or subsidiary, nor a key or principal employee of a casino, holding company or subsidiary. Rather, he is an individual who owns an interest in a business concern that owns an interest in the ownership of a planned casino. The Louisiana ban, on the other hand, would cover DePaul, as it targets those who hold interests, either direct or indirect, in companies that own casinos.
Restrictions on campaign contributions operate in an area protected by the First Amendment, particularly the right of freedom of association. However, a campaign contribution restriction, including a complete ban on campaign contributions, can withstand constitutional scrutiny if the State demonstrates a sufficiently important interest and employs means closely drawn to avoid unnecessary abridgment of associational freedoms. Thus, under Buckley and its progeny, we find that the campaign contribution restrictions on the riverboat and land-based casino gaming industries are closely drawn to match a sufficiently important interest in that they focus precisely on the problem of campaign contributions by the gaming industry—the narrow aspect of political association where the actuality and potential for corruption have been identified—while leaving such persons free to engage in independent political expression, to associate actively through volunteering their services, and to assist to a substantial extent in supporting candidates and committees by making independent expenditures. Therefore, we find that the provisions of
La. R.S. 18:1505.2(L) which prohibit riverboat and land-based casino gaming interests from making campaign contributions to candidates or to political committees of candidates do not violate the First Amendment.
820 So.2d at 509 (footnotes omitted). Thus, the Louisiana Supreme Court upheld a total ban on contributions by a broad group of individuals with interests in gaming, a group that would include investors such as DePaul.
We are satisfied that
§ 138 has been narrowly drawn and precisely tailored to serve the compelling interest of the State.§ 138 is applicable only to casino key employees, who are defined as persons in a supervisory capacity or empowered to make discretionary decisions which regulate casino operations.N.J.S.A. 5:12-9 . Such a select prohibition is more than justified by the overriding interest in protecting the governmental process from the infiltration of the casino influence. As previously noted, we should not “second-guess” the Legislature‘s judgment.
Id. at 1100 (emphases added) (footnote omitted).
Both the Louisiana and New Jersey courts applied a First Amendment strict scrutiny standard, and both courts ultimately concluded that the statute at issue was narrowly tailored to meet a compelling state interest. This Court applies the same basic test to challenges under Article I, Section 7—in order to pass strict scrutiny for Article I, Section 7 purposes, a statute must be “narrowly drawn to accomplish a compelling governmental interest.” Pap‘s II, 812 A.2d at 596 (citing Pap‘s A.M. v. City of Erie, 553 Pa. 348, 719 A.2d 273 (1998) (”Pap‘s I“) and Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 112, 112 S.Ct. 501, 116 L.Ed.2d 476 (1991)). That this Court applies the same test, however, does not dictate that the result will be the same.
Like the courts in Foster and Soto, we have little doubt that legislative measures which attempt to minimize or eliminate corruption, or even the appearance of corruption, in the gaming industry involve a compelling state interest. Further
“As the history of this State‘s public policy towards casino gambling reflects, there has been a longstanding and strong sensitivity to the evils traditionally associated with casino gambling when it is unregulated, and even when there is regulation, there is a continued sensitivity to the maintenance of the integrity of the process, and in particular, the regulatory process.
As I pointed out earlier, when casino gambling was legalized here in New Jersey, it was only on the condition that it be strictly regulated and that the regulation that came out of it extended not only to the casinos but to the people who ran the casinos.
The Legislature recognized when it passed the
Casino Control Act the limitation that the constitutional amendment carried with it and the Legislature recognized the concentration of wealth that exists with casinos and the disproportionate weight of that wealth, and how the casinos as a group or individually can bring that to the political process. The Legislature recognized the need for maintaining the integrity of the regulatory process, not in just some abstract way, but because the acceptability of casino gambling in the State depends on strict regulation.An equally important fact in that process is maintaining not just the actual integrity of the regulations but the appearance of the integrity that is needed because it is with that that the public confidence will continue and how the predicate to the legalization to gambling will exist.
Gambling is an activity rife with evil, so prepotent its mischief in terms of the public welfare and morality that it is governed directly by the Constitution itself. As expressed in the Casino Control Act , which implements the Constitution‘s gambling clause, it is the pronounced policy of the State to regulate and control the casino industry with the utmost strictness to the end that public confidence and trust in the honesty and integrity of the State‘s regulatory machinery can be sustained.”
Soto, 565 A.2d at 1093-94 (quoting unpublished trial court opinion) (emphasis added by Soto appellate court); see also Foster, 820 So.2d at 506-07.
The fact that measures designed to eliminate the prospect and appearance of corruption in the gaming industry may reflect a compelling governmental interest does not mean that a particular form of regulation is required. And, as our survey of other states with gaming reveals, the approach to political contributions has not been uniform: the majority of states do not regulate that form of expression at all, while the states that do regulate the expression target different individuals and interests. In the absence of a specifically governing constitutional provision or other constitutional infirmity, it is for the legislative branch to determine, in the first instance, whether to address political contributions by those associated with gaming, and if so, the contours of the restriction. We do not doubt that, in targeting political contributions by persons connected with the nascent industry of gaming in Pennsylvania, the General Assembly sought to encourage confidence both in the legislative body which authorized the new industry and in the integrity of the industry itself.16
Ultimately, what matters most for purposes of the constitutional challenge forwarded here is the specifics of the Pennsylvania legislation. And what is notable about that regulatory
(1) The primary objective of this part to which all other objectives and purposes are secondary is to protect the public through the regulation and policing of all activities involving gaming and practices that continue to be unlawful.
* * * *
(11) It is necessary to maintain the integrity of the regulatory control and legislative oversight over the operation of slot machines in this Commonwealth; to prevent the actual or appearance of corruption that may result from large campaign contributions; ensure the bipartisan administration of this part; and avoid actions that may erode public confidence in the system of representative government.
The constitutional question, therefore, is whether Section 1513 is narrowly drawn to accomplish the compelling state interest of preventing the “actual or appearance of corruption”
We agree. While the ban on political contributions does further the compelling state interest in avoiding the appearance of corruption in the oversight of the gaming industry, Section 1513 is not narrowly tailored. A statute that limited the size of contributions, rather than absolutely prohibiting any contributions, would be more narrowly drawn to accomplish the stated goal. Banning all contributions is not a narrowly drawn means of furthering a policy of negating the corrupting effect and appearance of large contributions. It totally bans a protected form of political expression and association which is unrelated to the identified interest, and does so despite the availability of more narrowly tailored restrictions. The obvious disconnection between the articulated interest and the means chosen renders the ban constitutionally infirm under Article I, Section 7 as, in our judgment, it clearly, palpably and plainly violates that constitutional provision.
We do not dispute the power of the Commonwealth‘s policy arguments: e.g., its emphasis that the ban does not reach conduct more traditionally regarded as expression, such as joining political committees and groups, participating in their activities, speaking on public issues in support of candidates; and its argument, premised upon the Illinois Supreme Court‘s decision in Schiller Park, 63 Ill.2d 499, 349 N.E.2d 61, that banning all political contributions is more effective in eliminating the appearance of corruption. These arguments, however, do not adequately come to terms with the specifics of this legislation. The General Assembly articulated a specific governing intention and purpose behind its decision to regulate campaign contributions, and the means it chose to effectuate that policy are not narrowly tailored to the interest expressed. The means chosen directly burden a constitutionally protected form of expression that is no less legitimate or important than other forms of expression. Our decisional task is not to determine if it is a better policy to ban all contributions Rather, we must accept the intention of the restriction as stated and apply the governing test; doing so, we are constrained to hold that the absolute ban on campaign contributions is unconstitutional.
DePaul‘s verified petition characterizes his challenge of Section 1513 as both facial and as-applied. Although the statute certainly was applied to DePaul, we view his challenge as properly implicating facial concerns as DePaul essentially argues that there exist no circumstances under which the statute, as written, would be valid. See Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 128 S.Ct. 1184, 1190, 170 L.Ed.2d 151 (2008) (quoting United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987) (law is facially unconstitutional where it appears no set of circumstances exists under which it would be valid and that law is unconstitutional in all of its applications)). Where, as here, protected expression is at issue, both the U.S. Supreme Court and this Court have recognized that “the overbreadth doctrine permits the facial invalidation of laws that inhibit the exercise of First Amendment rights if the impermissible applications of the law are substantial when judged in relation to the statute‘s plainly legitimate sweep.” Commonwealth v. Ickes, 582 Pa. 561, 873 A.2d 698, 702 (2005) (quoting City of Chicago v. Morales, 527 U.S. 41, 52, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999)); see also Wash State Grange, 128 S.Ct. at 1191 n. 6 (same). Here, we have found a wholesale banning of
For the foregoing reasons, we hold that
Justice SAYLOR, EAKIN and BAER and Justice TODD join the opinion.
Justice McCAFFERY files a dissenting opinion.
DISSENTING OPINION
Justice McCAFFERY.
I agree with many of the majority opinion‘s significant conclusions. I agree that Section 1513 of the Pennsylvania
Any exploration of the issue before us must hew to the following fundamental principles concerning constitutional challenges. “[A]ny party challenging the constitutionality of a statute must meet a heavy burden, for we presume legislation to be constitutional absent a demonstration that the statute
In my opinion, the approach taken by the majority in determining the constitutionality of Section 1513 is at odds with these principles. The majority declares Section 1513 invalid because it is not narrowly tailored to one of the many “public policy purposes” articulated in the
(1) The primary objective of this part to which all other objectives and purposes are secondary is to protect the public through the regulation and policing of all activities involving gaming and practices that continue to be unlawful.
* * * *
(11) It is necessary to maintain the integrity of the regulatory control and legislative oversight over the operation of slot machines in this Commonwealth; to prevent the actual
or appearance of corruption that may result from large campaign contributions; ensure the bipartisan administration of this part; and avoid actions that may erode public confidence in the system of representative government.
Maj. op. at 598, 969 A.2d at 551 (emphasis in original; quoting
The fact that the majority emphasizes several goals from Section 1102, not simply the goal concerning “large contributions,” indicates that the majority believes that these goals are applicable to and potentially supportive of Section 1513. I would certainly agree. In fact, I believe that Section 1513‘s prohibition on political contributions by gaming industry principals can safely be interpreted as a requisite means to “avoid actions that may erode public confidence in the system of representative government.”
The fact that the General Assembly articulated a concern regarding “the actual or appearance of corruption that may result from large campaign contributions,” does not mean that the General Assembly was not additionally concerned with the corrupting connection, whether actual or apparent, between politics in this Commonwealth and all monetary contributions of gaming industry principals. Section 1513
That Section 1513 exists at all is, in my opinion, conclusive proof that the General Assembly was concerned with more than the corrupting influence or the appearance of a corrupting influence of large campaign contributions. We must presume that the General Assembly intends that the entire statute is “to be effective and certain.”
Boiled down to its essence, however, the majority opinion declares Section 1513 invalid on the grounds that the General Assembly somehow “forgot” that in promulgating Section 1513 (a detailed, clear and specific piece of legislation), it was concerned only with addressing the issue of “large campaign contributions.”6 I cannot support such an analysis, one that, I respectfully suggest, flies in the face of a plain reading of the
Accordingly, in order to resolve the case before us, I believe we must directly address the constitutionality of Section 1513 based on its provisions, i.e., we must decide whether a total prohibition of political contributions by gaming industry principals is violative of the Pennsylvania Constitution.7 Thus, unlike the majority, I would apply a full Edmunds analysis to the issue.8 Further, as outlined below, I believe that such
The majority correctly concludes that the Commonwealth has a compelling state interest in eliminating actual or the appearance of corruption connected with political contributions from gaming industry principals, based on what appears to be the majority‘s adoption of the able and relevant analysis of the Louisiana Supreme Court9 and the New Jersey Superior Court, Appellate Division.10 Maj. op. at 597-98, 969 A.2d at 550-51. Further, the majority appears to find the compelling state interest requirement of a strict scrutiny analysis to be substantially similar to the “exacting scrutiny” or “closely drawn” standard applicable to First Amendment challenges to similar bans on political contributions. See maj. op. at 586, 969 A.2d at 544; see also Buckley v. Valeo, 424 U.S. 1, 15-29, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (per curiam) (upholding under the First Amendment political contribution limits imposed by the
Of particular significance to our review is the fact that a ban or limitation on political monetary contributions has only an indirect and typically a marginal impact on free speech and association rights.
[A] limitation upon the amount that any one person or group may contribute to a candidate or political committee entails only a marginal restriction upon the contributor‘s ability to engage in free communication. A contribution serves as a general expression of support for the candidate and his views, but does not communicate the underlying basis for the support. The quantity of communication by the contributor does not increase perceptibly with the size of his contribution, since the expression rests solely on the undifferentiated, symbolic act of contributing. At most, the size of the contribution provides a very rough index of the intensity of the contributor‘s support for the candidate.... While contributions may result in political expression if spent by a candidate or an association to present views to the voters, the transformation of contributions into political debate involves speech by someone other than the contributor.
Buckley, supra at 20-21, 96 S.Ct. 612 (footnote omitted); see also Nixon, supra at 386-87, 120 S.Ct. 897 (quoting Buckley, supra at 20-21); and California Medical Ass‘n v. Federal Election Comm‘n, 453 U.S. 182, 196 n. 16, 101 S.Ct. 2712, 69 L.Ed.2d 567 (1981) (stating that political contributions are merely an “attenuated form of speech“).
On the other side of the equation, it must be recognized that political contribution limits and bans, although imposing some restrictions on the free exercise of political expression and association, provide significant value to the electoral process by protecting the integrity of the system, which in turn, encourages greater political participation. As the United States Supreme Court explained:
Because the electoral process is the very means through which a free society democratically translates political speech into concrete governmental action, contribution limits, like other measures aimed at protecting the integrity of the process, tangibly benefit public participation in political debate. For that reason, when reviewing [a legislature‘s] decision to enact contribution limits ... [courts should afford] deference to [the legislature‘s] ability to weigh competing constitutional interests in an area in which it enjoys particular expertise.
McConnell v. Federal Election Comm‘n, 540 U.S. 93, 137, 124 S.Ct. 619, 157 L.Ed.2d 491 (2003) (emphasis added; quotation marks omitted) (quoting Nixon, supra at 400-01 (Breyer, J., concurring)).
As the majority notes, Section 1513 was devised “to encourage confidence both in the legislative body which authorized the new industry [and by extension, the integrity of the political process] and the integrity of the industry itself.” Maj. op. at 598, 969 A.2d at 551. Certainly, our General
With respect to the first component, the majority appears to be satisfied that the class of individuals banned from making political contributions by Section 1513 is sufficiently narrow to withstand constitutional strict scrutiny. See maj. op. at 549-50, emphasizing portions of In re Petition of Soto, 236 N.J. Super. 303, 565 A.2d 1088, 1100 (App. Div. 1989). Soto upheld New Jersey‘s ban on political contributions by “key” casino employees. I certainly agree with the majority, and with the supporting analysis of Soto, that the class of individuals prohibited from making political contributions by Section 1513 has been narrowly drawn by the General Assembly to meet its compelling state interest. Thus, I believe that the aspect of Section 1513 concerning the class of gaming industry principals survives strict scrutiny.
With respect to the second component, the majority appears to agree with Petitioner‘s argument that Section 1513 cannot survive strict scrutiny because that section‘s blanket prohibition of political contributions includes persons running for political office that have “no connection ... [with] the gaming
Further, I find fully persuasive the analysis of the New Jersey Superior Court, Appellate Division with respect to the importance of prohibiting gaming industry political contributions to all political parties or their candidates.
Political parties are institutions of very great importance under our form of government. They are, in fact, the effective instrumentalities by which the will of the people may be made vocal, and the enactment of laws in accordance therewith made possible. So potent have they become in administering the affairs of government that they are now regarded as inseparable from, if not essential to, a republican form of government, ... and as a necessary adjunct to representative government. They are imbued with a quasi-governmental character.
Political parties have come to be regarded by the courts as governmental agencies through which the sovereign power is exercised by the people. The conception that a political party is merely a private association of citizens has been generally abandoned. In most jurisdictions the state has seen fit to declare that political parties shall be, as to their mode of holding conventions and nominating candidates for public office, regarded as public bodies whose methods are to be controlled by the state.
The compelling state interest in maintaining the integrity of political parties and organizations from undue influence by those individuals who, by the very nature of their employment, play a pivotal role in the casino industry justifies upholding the restrictions found in [the New Jersey legislation].
Soto, supra at 1097-98 (citations omitted). Further, the New Jersey court relevantly determined:
Nor do we find the statute overbroad because it prohibits contributions to any political candidate and committee within the State regardless of whether the particular office or committee has anything to do with casino regulation. This argument was answered in Schiller Park [Colonial Inn, Inc. v. Berz, 63 Ill.2d 499, 349 N.E.2d 61, 67 (Ill. 1976)], where the Illinois [Supreme] Court stated that “[i]t is difficult and probably impossible to determine precisely which officeholders will be in a position to exercise influence in the area of liquor regulation.” ... As noted above, the Schiller Park court observed that “[t]he nature of our political system and past history suggests that political officials or public officers may wield powers or possess influence beyond the powers and influence inherent in their official duties.” [Id.]
Thus, because of the importance and influence of political parties, indeed their “quasi-governmental character,” I believe that a prohibition on contributions to even “minor” and purportedly “unconnected-to-gaming-issues” candidates narrowly meets the General Assembly‘s compelling state goal of preventing the appearance of, or actual, corruption that is associated with political contributions from gaming industry principals. Accordingly, unlike the majority, I find Petitioner‘s argument to be without merit.
With respect to the last component, I believe that a ban as opposed to a limitation on political contributions withstands constitutional strict scrutiny as well. First, I note that there is no per se rule among our sister courts that bans on political contributions, rather than limits, are unconstitutional. See
Second, as the majority opinion notes, New Jersey and Louisiana courts have upheld the constitutionality of bans on political contributions by gaming industry principals. Soto, supra; Casino Ass‘n of La. v. State ex rel. Foster, 820 So.2d 494 (La. 2002). Other courts have also upheld bans on political contributions by those in other industries. See, e.g., Schiller Park, supra (ban on contributions by holders of liquor licenses or principals of a liquor licensee); Green Party of Connecticut, supra (ban on contributions by lobbyists, state contractors, and their immediate family members); Mariani v. United States, 212 F.3d 761 (3d Cir. 2000) (en banc) (ban on corporate hard money contributions). This is by no means an exhaustive list, and other courts have come to different conclusions.12 However, at the root of those decisions upholding
Given the acknowledged vulnerability of the casino industry to organized crime and the compelling interest in maintaining the public trust, not only in the casino industry but also the governmental process which so closely regulates it, ... there is no viable alternative available [to a ban rather than a limitation on political contributions] to prevent the appearance of, or actual, corruption of the political process in New Jersey.... [P]ublic perception that any improper influence has infiltrated the regulatory and judicial processes, however slightly, would undermine the trust that is essential to continued confidence in the industry and, what is more important, in state government.
Id. (citations and quotation marks omitted; emphasis added).
Further, we should not overlook the fact that a mere limitation on political contributions, rather than a ban, may undercut the compelling state purpose of the legislation because many accumulated small contributions may be able to achieve the evil that the legislature was trying to prevent. As the Illinois Supreme Court sagely observed, with respect to challenged legislation banning political contributions by liquor licensees and their principals:
We agree that it is large campaign contributions which are most likely to create a danger that liquor licensees or other individuals in the liquor business may obtain a degree of influence over public officials. The General Assembly may reasonably have believed, however, that its efforts to further the relevant State interests would have been much less
effective if only contributions above a certain amount were prohibited. It is possible that a liquor licensee could circumvent a law proscribing only large contributions by financing a large number of small contributions ostensibly given by his friends and associates. Also, if many liquor licensees acted in concert and each made a small contribution to a particular candidate, it is conceivable that they could, as a group, accomplish what section 12a of the Liquor Control Act was intended to prevent. We therefore hold that section 12a is not rendered unconstitutional by the fact that it prohibits small political contributions as well as large contributions.
Schiller Park, supra at 66 (emphasis added).
I find quite persuasive the analyses of these foreign jurisdictions and believe that they should play a significant role in our review, even though some of these decisions applied a lesser standard than strict scrutiny. The fundamental wisdom underlying these decisions is, in my opinion, impeccable and completely in accord with the strong presumption of constitutionality that we are to afford the acts of our General Assembly. Thus, because I believe that “members of the General Assembly are the best-positioned to determine the role that campaign contributions play on their personal decision-making process” (Green Party of Connecticut, 590 F.Supp.2d at 326), and because even small contributions may give rise to the evil that the General Assembly intended to prevent by the enactment of Section 1513, I would conclude that Section 1513‘s ban on political contributions is narrowly drawn and tailored to the clear and compelling government interests in this case.
Further, the fact that the decisions of foreign jurisdictions upholding bans on contributions rely so strongly on the very real threat or appearance of corruption, makes an analysis under the fourth Edmunds prong all the more critical. That prong requires an inquiry into “policy considerations, including unique issues of state and local concern, and [their] applicability within modern Pennsylvania jurisprudence.” Edmunds, 586 A.2d at 895 (quotation marks omitted). Certainly, many of the policy considerations articulated in Soto and other
The controversy surrounding the Commonwealth‘s venture into gaming is no secret. The General Assembly did not enact the
“The importance of the governmental interest in preventing [corruption of elected representatives through the creation of political debts] has never been doubted.” First National Bank of Boston v. Bellotti, 435 U.S. 765, 788 n. 26, 98 S.Ct. 1407, 55 L.Ed.2d 707 (1978). Further, preventing the perception of corruption is an equally compelling state interest. Buckley, supra at 27, 96 S.Ct. 612; Nixon, supra at 389-90, 120 S.Ct. 897; McConnell, supra at 143, 150, 124 S.Ct. 619. Indeed, Section 1102(11), quoted earlier in this dissenting
Here, where Section 1513‘s limitation on free speech and association rights involves only an “attenuated” form of speech and association, permitting the free expression of other, more direct, and wide-ranging forms of speech and association; where the classes of persons affected by the infringement are narrowly drawn and reasonably defined; where the Commonwealth‘s interests are indeed compelling; and where the General Assembly is in the best position to determine whether a ban rather than a limitation on contributions satisfies its compelling interests, I believe that Section 1513 survives a constitutional review based on the strictest scrutiny.16 In my opinion, there is no support for the conclusion that Section 1513 “‘clearly, palpably, and plainly’ violates the Constitution.” Konidaris, 953 A.2d at 1239. Accordingly, I dissent.
Notes
The Pennsylvania Supreme Court shall have exclusive jurisdiction to hear any challenge to or to render a declaratory judgment concerning the constitutionality of this part. The Supreme Court is authorized to take such action as it deems appropriate, consistent with the Supreme Court retaining jurisdiction over such a matter, to find facts or to expedite a final judgment in connection with such a challenge or request for declaratory relief.
An officer; director; person who directly holds a beneficial interest in or ownership of the securities of an applicant or licensee; person who has a controlling interest in an applicant or licensee, or has the ability to elect a majority of the board of directors of a licensee or to otherwise control a licensee; lender or other licensed financial institution of an applicant or licensee, other than a bank or lending institution which makes a loan or holds a mortgage or other lien acquired in the ordinary course of business; underwriter of an applicant or licensee; or other person or employee of an applicant, slot machine licensee, manufacturer licensee or supplier licensee deemed to be a principal by the Pennsylvania Gaming Control Board.
(a) Contribution restriction.—The following persons shall be prohibited from contributing any money or in-kind contribution to a candidate for nomination or election to any public office in this Commonwealth, or to any political party committee or other political committee in this Commonwealth or to any group, committee or association organized in support of a candidate, political party committee or other political committee in this Commonwealth:
(1) An applicant for a slot machine license, manufacturer license, supplier license, principal license, key employee license or horse or harness racing license.
(2) A slot machine licensee, licensed manufacturer, licensed supplier or licensed racing entity.
(3) A licensed principal or licensed key employee of a slot machine licensee, licensed manufacturer, licensed supplier or licensed racing entity.
(4) An affiliate, intermediary, subsidiary or holding company of a slot machine licensee, licensed manufacturer, licensed supplier or licensed racing entity.
(5) A licensed principal or licensed key employee of an affiliate, intermediary, subsidiary or holding company of a slot machine licensee, licensed manufacturer, licensed supplier or licensed racing entity.
(6) A person who holds a similar gaming license in another jurisdiction and the affiliates, intermediaries, subsidiaries, holding companies, principals or key employees thereof.
“Contribution.” Any payment, gift, subscription, assessment, contract, payment for services, dues, loan, forbearance, advance or deposit of money or any valuable thing made to a candidate or political committee for the purpose of influencing any election in this Commonwealth or for paying debts incurred by or for a candidate or committee before or after any election. The term shall include the purchase of tickets for events including dinners, luncheons, rallies and other fundraising events; the granting of discounts or rebates not available to the general public; or the granting of discounts or rebates by television and radio stations and newspapers not extended on an equal basis to all candidates for the same office; and any payments provided for the benefit of any candidate, including payments for the services of a person serving as an agent of a candidate or committee by a person other than the candidate or committee or person whose expenditures the candidate or committee must report. The term also includes any receipt or use of anything of value received by a political committee from another political committee and also includes any return on investments by a political committee.
The majority opinion actually starts upon an Edmunds analysis by (1) articulating the text of the relevant constitutional provision (Article 1, Section 7); (2) briefly reviewing the history of the provision and relevant case law; and (3) making a limited review of relevant case law from other jurisdictions. But the majority has limited its review of relevant case law from other jurisdictions to cases involving bans on political contributions from persons involved in the gaming industry. However, all case law involving bans or limits on political contributions from whatever source (e.g., from lobbyists) is relevant to our inquiry. Constitutional free speech and association guarantees do not carve out unique considerations for persons involved in the gaming industry. Further, the majority does not engage in the final Edmunds area of inquiry: “policy considerations, including unique issues of state and local concern, and applicability within modern Pennsylvania jurisprudence.”