FILED: NEW YORK COUNTY CLERK 10/29/2013

NYSCEF DOC. NO. 11

INDEX NO. 159965/2013 RECEIVED NYSCEF: 10/29/2013

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x NEW YORK STATE SENATE REPUBLICAN : CAMPAIGN COMMITTEE, : : Petitioner, : : - against : : COMMISSION TO INVESTIGATE PUBLIC : CORRUPTION, : : Respondent. : - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

Index No. _____________E

MEMORANDUM OF LAW IN SUPPORT OF PETITION TO QUASH AND FOR A PROTECTIVE ORDER

Michael Chertoff Robert K. Kelner COVINGTON & BURLING LLP 1201 Pennsylvania Avenue Washington, DC 10004 (202) 662-6000 Jennifer Farina 620 Eighth Avenue New York, NY 10018 (212) 841-1140 Attorneys for Petitioner New York State Senate Republican Campaign Committee

TABLE OF CONTENTS PRELIMINARY STATEMENT .............................................................................................................. 1 STATEMENT OF FACTS ..................................................................................................................... 1 ARGUMENT ...................................................................................................................................... 6 POINT I: THE COMMISSIONS SUBPOENA SHOULD BE QUASHED AND A PROTECTIVE ORDER ISSUED DIRECTING THAT THE COMMITTEE NEED NOT RESPOND TO IT. ......................................................................................... 6 A. B. C. D. The Subpoena is Not a Valid Exercise of the Commissions Subpoena Power. ..................................................................................................................... 7 The Subpoena is Overbroad and Unduly Burdensome. .......................................... 8 The Subpoena Unnecessarily Abridges the Committees First Amendment Rights of Free Political Expression and Association. ............................................. 9 The Subpoena is Tainted by Impermissible Partisan Bias. ................................... 15

CONCLUSION.................................................................................................................................. 19

TABLE OF AUTHORITIES Cases

Page(s)

303 W. 42nd St. Corp. v. Klein, 46 N.Y.2d 686 (1979) ..................................................................................................16, 17, 18 Avella v. Batt, 33 A.D.3d 77 (3d Dept 2006) .............................................................................................9, 11 Buckley v. Valeo, 424 U.S. 1 (1976) ............................................................................................................. passim California Democratic Party v. Lungren, 919 F.Supp. 1397 (N.D. Cal. 1996) ...........................................................................................9 Carlisle v. Bennett, 268 N.Y. 212 (1935) ..................................................................................................................6 City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985) .................................................................................................................15 Clubside, Inc. v. Valentin, 468 F.3d 144 (2d Cir. 2006).....................................................................................................16 Colorado Republican Fed. Campaign Comm. v. FEC, 518 U.S. 604 (1996) .............................................................................................................9, 11 Commn on Lobbying v. Simmons, 4 Misc. 3d 749 (Sup. Ct. Albany Co. 2004) ..............................................................................9 Crowley Foods, Inc. v. Lefkowitz, 75 A.D.2d 940 (3d Dept 1980) .................................................................................................6 FEC v. Larouche Campaign, 817 F.2d 233 (2d Cir. 1987).....................................................................................................12 FEC v. Machinists Non-Partisan Political League, 655 F.2d 380 (D.C. Cir. 1981) .................................................................................................11 Golden v. Clark, 76 N.Y.2d 618 (1990) ..............................................................................................................15 Matter of Goverl Consulting Corp. v. New York Temporary State Commn on Lobbying, 113 A.D. 611 (3d Dept. 1986), revd for reasons stated in dissent, 68 N.Y.2d 839 (1986)......9 Green Party of Connecticut v. Garfield, 616 F.3d 213 (2d Cir. 2010).....................................................................................................15 ii

Harlen Associates v. Inc. Vill. of Mineola, 273 F.3d 494 (2d Cir. 2001).........................................................................................15, 16, 18 Kalkstein v. DiNapoli, 170 Misc.2d 165 (Sup. Ct. Albany Co. 1996), affd in relevant part, 228 A.D.2d 28 ....6, 7, 13 Kalkstein v. DiNapoli, 228 A.D.2d 28 (3d Dept 1997) ...........................................................................................7, 10 Madole v. Barnes, 20 N.Y.2d 169 (1967) ..............................................................................................................15 Myer v. Myer, 271 A.D. 465 (1st Dept 1946), affd, 296 N.Y. 979, 73 N.E.2d 562 (1947) ..........................15 Myerson v. Lentini Bros. Moving & Stor. Co., 33 N.Y.2d 250 (1973) ............................................................................................................6, 7 Natale v. Town of Ridgefield, 170 F.3d 258 (2d Cir. 1999).....................................................................................................15 New York Republican State Comm. v. New York State Commn on Govt Integrity, 138 Misc. 2d 790 (Sup. Ct. N.Y. Co. 1988), affd,140 A.D.2d 1014 (1st Dept 1988)13, 14, 18 Nicholson v. State Commn on Judicial Conduct, 50 N.Y.2d 597 (1980) ..............................................................................................................10 Nicholson v. State Commn on Judicial Conduct, 68 A.D.2d 851 (1979) ................................................................................................................8 In re Office of Atty Gen. of State of New York, 269 A.D.2d 1 (1st Dept 2000) ..............................................................................................8, 9 Perry v. Schwarzenegger, 591 F.3d 1147 (9th Cir. 2010) .................................................................................................11 San Francisco County Democratic Cent. Comm. v. Eu, 826 F.2d 814 (9th Cir.1987), affd, 489 U.S. 214 (1989) ........................................................10 Tashjian v. Republican Party of Connecticut, 479 U.S. 208 (1986) ...................................................................................................................9 Vill. of Willowbrook v. Olech, 528 U.S. 562 (2000) .................................................................................................................15 White Bay Enter., Ltd. v. Newsday, Inc., 288 A.D.2d 211 (2d Dept 2001) ...............................................................................................8

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Williams v. Rhodes, 393 U.S. 23 (1968) (Douglas, J., concurring) ..........................................................................15 Yick Wo v. Hopkins, 118 U.S. 356 (1886) .................................................................................................................15

Statutes 1988 N.Y. Sess. Law Serv. 71 .......................................................................................................14 CPLR 2304....................................................................................................................................1 CPLR 3103................................................................................................................................1, 8 N.Y. Elec. Law Art. 14 ..................................................................................................................13 N.Y. Elec. Law 2-100 ...................................................................................................................2 N.Y. Elec. Law 14-100 .................................................................................................................1 N.Y. Elec. Law 14-102 ...............................................................................................................14 N.Y. Elec. Law 14-124 ...........................................................................................................2, 14 N.Y. Exec. Law 6 ..........................................................................................................................2 N.Y. Exec. Law 63 ........................................................................................................................2

Constitutional Provisions N.Y. Const. art. I, 6 ...............................................................................................................15, 17 N.Y. Const. art. I, 11 .............................................................................................................15, 17 U.S. Const. amend. I .............................................................................................................. passim U.S Const. amend. XIV, 1 ....................................................................................................15, 17

Other Authorities Executive Order (Gov. Andrew Cuomo) No. 106 .......................................................................2, 7

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Jesse McKinley & Thomas Kaplan, Cuomos Office Is Said to Rein In Ethics Board He Created, N.Y. Times, Oct. 8, 2013 .....................................................................................................5, 17 Kenneth Lovett, Cuomos anti-corruption panel stops at investigating his own Democratic party, N.Y. Daily News, Oct. 3, 2013 ............................................................................................5, 17 Kenneth Lovett, Gov. Cuomo leans on independent corruption panel, N.Y. Daily News, Sept. 30, 2013....................................................................................................................................17 Rules of the New York Republican State Committee (2011) ..........................................................2 Thomas Kaplan, Panel to Investigate State Democratic Party, N.Y. Times, Oct. 15, 2013 .....5, 18

Petitioner New York State Senate Republican Campaign Committee (the Committee) submits this memorandum in support of its petition pursuant to CPLR 2304 to quash the September 20, 2013 subpoena duces tecum issued by the respondent Commission to Investigate Public Corruption (the Commission), and for a protective order pursuant to CPLR 3103. PRELIMINARY STATEMENT The Commission has issued a far-reaching subpoena that demands production by the Committee, a New York State political party committee, of its most sensitive internal documents. The subpoena seeks documents and information that go to the heart of the Committees political functions, and it reaches beyond the campaign finance-related information that the Committee is already required by law to disclose. By issuing an overbroad and burdensome subpoena without sufficient justification, and in a manner that strongly suggests partisan bias, the Commission both disrupts the careful balance struck by the States existing campaign finance disclosure regime and infringes deeply upon the Committees rights to free political expression and association. Moreover, because the rules and procedures governing the Commissions exercise of its powers remain shrouded in mystery, the Commission has exceeded its own lawful authority to issue the subpoena. To protect the Committees fundamental rights under the United States and New York State Constitutions against the partisan use of state power, the Committee requests that the Court quash the subpoena and issue a protective order directing that the Committee need not respond to the subpoenas remaining demands. STATEMENT OF FACTS The Committee is the campaign arm of the Republican members of the New York State Senate. Affidavit of Judy Crane, 3. It is a party committee, as defined in N.Y. Elec. 1

Law 14-100 (McKinney) and provided for by N.Y. Elec. Law 2-100 (McKinney). Id., 3 and Exhibit 1 (Rules of the New York Republican State Committee (2011), also available at http://www.wnyrepublicans.com/1/nys-committee-rules.pdf). Its housekeeping account is a segregated account comprising monies received and expenditures made to maintain a permanent headquarters and staff and carry on ordinary activities which are not for the express purpose of promoting the candidacy of specific candidates. N.Y. Elec. Law 14-124(3) (McKinney); Affidavit of Judy Crane, 6-7. The Committees housekeeping account is an administrative arrangement. It is not a separate legal entity or otherwise separable from the Committee as a whole. Affidavit of Judy Crane, 7. The Commission was appointed by Governor Andrew Cuomo on July 2, 2013, pursuant to N.Y. Exec. Law 6 (McKinney) (Moreland Act) and N.Y. Exec. Law 63 (McKinney). See Executive Order (Gov. Andrew Cuomo) No. 106. Governor Cuomos Executive Order instructed this Moreland Commission to [i]nvestigate the State Board of Elections, Exec. Order 106 II(a), [i]nvestigate weaknesses in existing laws, regulations and procedures relating to the regulation of lobbying, id. at II(b), and [i]nvestigate weaknesses in existing laws, regulations and procedures relating to addressing public corruption, conflicts of interest, and ethics in State Government. Id. at II(c). The Executive Order gave the Commissioners powers to subpoena, id. at V, but only if the Co-Chairpersons unanimously approve any subpoena prior to its issuance, id. at V(1), and only if the CoChairpersons unanimously approve such procedures and rules as they believe necessary to govern the exercise of the powers and authority given or granted to the Commissioners . . . , including rules designed to provide transparency while protecting the integrity of the investigation and rights to privacy. Id. at V(2).

On September 20, 2013, the Committee received a subpoena duces tecum (the Subpoena) from the Commission demanding extensive information about the Committees internal communications and housekeeping account. Affirmation of Michael Chertoff, 2-3 and Exhibit 1 (Subpoena). The Subpoena was directed to New York Senate Republican Campaign Committee-Housekeeping (SRH), despite the fact that housekeeping is not a separate entity from the Committee as a whole. Id.; Affidavit of Judy Crane, 6-7. The Subpoena broadly defined SRH to mean NEW YORK SENATE REPUBLICAN CAMPAIGN COMMITTEE-HOUSEKEEPING. [sic] and all its principals, executives, representatives, agents, affiliates, present or former parents, subsidiaries, related entities, directors, officers, chairs, partners, principals, owners, supervisors, employees, agents, representatives, contractors, attorneys or other persons acting on its behalf, its respective predecessors or successors or any of the affiliates of the foregoing. Affirmation of Michael Chertoff, Exhibit 1 (Subpoena), at 2. The Subpoena demanded that the Committee produce the following documents in unredacted form, see Affirmation of Michael Chertoff, Exhibit 1 (Subpoena), at 3, for the time period January 1, 2012, to the present: (1) An organizational chart of SRHs operations, a list of SRHs full-time employees and the titles and job responsibilities of such employees, (2) Documents relating to financial transactions, including contributions received and made, transfers (in and out), receipts, expenditures, and expenses, (3) Documents sufficient to identify all expenditures related to the maintenance of a permanent party headquarters and payment of permanent staff,

(4) Documents and Communications relating to the 2012 New York State Senate elections (Elections), including Documents and Communications involving any public official, political candidate, political entity, political campaign, political action committee, political committee, or political party organization; including the NEW YORK STATE INDEPENDENCE PARTY HOUSEKEEPING ACCOUNT (IPH), (5) Documents and Communications involving or relating to IPH, including discussions about the Elections, (6) Documents and Communications involving the production or proposed production of any media materials, including television or print advertisements or mailers, including by DIGITAL X-PRESS and by STRATEGIC MEDIA PLACEMENT, and including the production of materials for the Elections, (7) Materials created for SRH (directly or indirectly) or for IPH by DIGITAL XPRESS, and (8) Materials created for SRH (directly or indirectly) or for IPH by STRATEGIC MEDIA PLACEMENT. Affirmation of Michael Chertoff, Exhibit 1 (Subpoena), at 6.

Because the Committees housekeeping account is simply an administrative account, and not a separate entity with a distinct staff or structure, these requests potentially call for production of all of the Committees internal and external communications regarding the 2012 election. See Affidavit of Judy Crane, 6-7. According to media reports, the Commission initially sought documents from the Committee and the New York State Independence Party, 1 and possibly the New York State Democratic Senate Campaign Committee. 2 But the Commission reportedly agreed to subpoena the New York State Democratic Committeewhich has its own housekeeping account and, significantly, is the party committee most closely associated with the Executiveonly after the Executives involvement in the Commissions operations became public, leading to public condemnation of the Commissions partisan nature. 3 As of this date, there is no public evidence that the Commission has in fact issued a subpoena to the New York State Democratic Committee. After the Commission granted the Committees request for an extension of the return date for the Subpoena to October 30, 2013, the Committee made a targeted production of documents that responded to the Subpoenas demands 1 and 3 for, respectively, organizational information about the SRH (which, because the housekeeping account is not a separate entity, was information about the Committees organization) and a log of the housekeeping accounts
1

See Jesse McKinley & Thomas Kaplan, Cuomos Office Is Said to Rein In Ethics Board He Created, N.Y. Times, Oct. 8, 2013, http://www.nytimes.com/2013/10/08/nyregion/cuomosoffice-is-said-to-rein-in-ethics-board-he-created.html.

Kenneth Lovett, Cuomos anti-corruption panel stops at investigating his own Democratic party, N.Y. Daily News, Oct. 3, 2013, http://www.nydailynews.com/news/politics/cuomo-anticorruption-panel-won-probe-party-article-1.1474800.
3

See Thomas Kaplan, Panel to Investigate State Democratic Party, N.Y. Times, Oct. 15, 2013, http://www.nytimes.com/2013/10/16/nyregion/panel-to-investigate-state-democratic-party.html.

expenditures, which the Committee was already required by law to disclose to the New York State Board of Elections (SBOE). Affirmation of Michael Chertoff, 2-5; Affidavit of Judy Crane, 8. On October 21, 2013, the Committee sent a letter to the Commission requesting that the Subpoena be withdrawn. Affirmation of Michael Chertoff, 6 and Exhibit 2 (letter). The Commission responded by letter on October 29, 2013, declining to withdraw the Subpoena. Affirmation of Michael Chertoff, 7-8 and Exhibit 3 (response letter). ARGUMENT POINT I: THE COMMISSIONS SUBPOENA SHOULD BE QUASHED AND A PROTECTIVE ORDER ISSUED DIRECTING THAT THE COMMITTEE NEED NOT RESPOND TO IT. The subpoena power of state bodies is not without limit and must be exercised with great care, especially when it is levied against political organizations and aimed at discovering core political speech. There are limits upon the power of public officials authorized to issue subpoenas. Kalkstein v. DiNapoli, 170 Misc.2d 165, 170 (Sup. Ct. Albany Co. 1996), affd in relevant part, 228 A.D.2d 28 (quoting Myerson v. Lentini Bros. Moving & Stor. Co., 33 N.Y.2d 250, 256 (1973)) (hereinafter Kalkstein I). The New York State Court of Appeals has emphasized that the statutory authorization to issue subpoenas would not be construed to allow [a public official] to embark upon a roving course to pry into the affairs of any person. Myerson, 33 N.Y.2d at 256 (citing Carlisle v. Bennett, 268 N.Y. 212, 217-18 (1935)). Accordingly, parties who are subject to a non-judicial subpoena duces tecum may always challenge the subpoena in court on the ground it calls for irrelevant or immaterial documents or subjects the witness to harassment. Kalkstein I, 170 Misc.2d at 171 (quoting Myerson, 33 N.Y.2d at 256). An agency issuing a nonjudicial subpoena must show its authority, the relevancy of the items sought and some factual basis for inquisitorial action. Id. at 170 (quoting Crowley Foods, Inc. v. Lefkowitz, 75 A.D.2d 940, 941 (3d Dept 1980), citing 6

Myerson, 33 N.Y.2d 250). Commissions are bound by these principles even if their purpose is not to uncover wrongdoing with respect to current law, but to determin[e] the necessity for new laws[.] Id. at 171. Where the material requested implicates the targets right of free political association, the burden to defend the subpoena is even higher: [T]he governments quest for information is precluded unless it shows that there are governmental interests sufficiently important to outweigh the possibility of infringement of 1st Amendment rights. Kalkstein v. DiNapoli, 228 A.D.2d 28, 31 (3d Dept 1997) (quoting Buckley v. Valeo, 424 U.S. 1, 66 (1976)) (internal brackets omitted) (hereinafter Kalkstein II); see U.S. Const. amend. I. Here, the Subpoena should be quashed and a protective order issued because the Subpoena results from an improper exercise of the Commissions subpoena power; is overbroad and burdensome; infringes upon the Committees rights of free political expression and association; and reflects that the Commission is operating in a partisan manner that is prejudicial to the Committee and therefore subjects the [Committee] to harassment. Kalkstein I, 170 Misc.2d at 171. A. The Subpoena is Not a Valid Exercise of the Commissions Subpoena Power. The Subpoena should be quashed because the Commission lacks the authority to issue it. The Executive Order establishing the Commission requires it to unanimously adopt rules designed to provide transparency while protecting the integrity of the investigation and rights to privacy. Executive Order (Gov. Andrew Cuomo) No. 106 (V)(2). Promulgation of those rules is a predicate to the Commissions subpoena power. The Commission does not appear to have promulgated the necessary procedures and rules to govern the exercise of the powers and authority given or granted to the Commissioners. Id. The Committee has requested that the Commission make available its procedures and rules. Affirmation of Michael Chertoff, 7

6 (letter) and Exhibit 2. The Commission has met this request with silence. Absent any public indication that the Commission had, prior to issuing the Subpoena, adopted rules and procedures adequate to protect the integrity of the Commissions investigation and the privacy interests of subpoenaed parties, as required by the Governors Executive Order, the Subpoena is invalid. See Nicholson v. State Commn on Judicial Conduct, 68 A.D.2d 851, 852 (1979) (granting motion to quash subpoena regarding certain requests because of Commissions failure to follow predicate statutory procedures as to those requests). B. The Subpoena is Overbroad and Unduly Burdensome. Subpoenas that are overbroad and unduly burdensome are unenforceable. White Bay Enter., Ltd. v. Newsday, Inc., 288 A.D.2d 211, 212 (2d Dept 2001) (quashing subpoenas that were overly broad and unduly burdensome); see also CPLR 3103. [A] subpoena should be quashed when the materials sought are, in fact, irrelevant to a legitimate subject of inquiry, or when the subpoena is being used for a fishing expedition to ascertain the existence of evidence. In re Office of Atty Gen. of State of New York, 269 A.D.2d 1, 12-13 (1st Dept 2000) (citations omitted). The Subpoena at issue here includes requests for all financial records, and for all Documents and Communications relating to the 2012 New York State Senate elections. See Affirmation of Michael Chertoff, Exhibit 1 (Subpoena) at 6. These requests are sweepingly broad. New York State Senate elections are the very purpose of the Committees existence. Affidavit of Judy Crane, 4. Consequently, the Subpoena potentially demands all of the Committees paper and electronic documents and communications over a nearly two-year period, including an election year. Complying with these requests would be acutely burdensome. The Committee has already produced to the Commission or publicly provides to the SBOE reports of all of its financial transactions. Affirmation of Michael Chertoff, 5; 8

Affidavit of Judy Crane, 8. The Commission has no factual basis for asserting that the voluminous additional materials it seeks are relevant to the investigation, and has made no meaningful effort to ensure that the Subpoena was closely drawn. Even if the Commission were within its authority to issue the Subpoena, which it is not, no agency of government may conduct an unlimited and general inquisition into the affairs of persons within its jurisdiction solely on the prospect of possible violations of law being discovered, especially with respect to subpoenas duces tecum. See Matter of Goverl Consulting Corp. v. New York Temporary State Commn on Lobbying, 113 A.D. 611, 614-615 (3d Dept. 1986) (Mahoney, P.J., dissenting), revd for reasons stated in dissent, 68 N.Y.2d 839, 841 (1986) (internal quotation omitted); see also, e.g., Commn on Lobbying v. Simmons, 4 Misc. 3d 749, 754 (Sup. Ct. Albany Co. 2004) (quashing subpoenas when state commission had demonstrated neither the relevance of nor a basis for the inquisition into financial records). If the Subpoena is enforced, it would allow the Commission to conduct an unbounded fishing expedition into the Committees political activities. In re Office of Atty Gen. of State of New York, 269 A.D.2d at 13. C. The Subpoena Unnecessarily Abridges the Committees First Amendment Rights of Free Political Expression and Association. The Commissions demands for documents reflecting the Committees internal strategic communications violate the Committees fundamental First Amendment rights. The First Amendment, U.S. Const. amend. I., protects the free expression and association rights of political party organizations. Avella v. Batt, 33 A.D.3d 77, 83 (3d Dept 2006) (citing Colorado Republican Fed. Campaign Comm. v. FEC, 518 U.S. 604, 615-16 (1996)); Tashjian v. Republican Party of Connecticut, 479 U.S. 208, 214 (1986); Buckley, 424 U.S. at 15; California Democratic Party v. Lungren, 919 F.Supp. 1397, 1400 (N.D. Cal. 1996) (Because individuals exercise their free speech rights by participating in political parties, political parties also possess 9

First Amendment rights.) (citing San Francisco County Democratic Cent. Comm. v. Eu, 826 F.2d 814, 818 (9th Cir.1987), affd, 489 U.S. 214 (1989)). Subpoenas that demand the records of a political organization tread[] on the right of political association which is protected by the 1st Amendment. Kalkstein II at 30. Because of this potential interference with fundamental rights, the governments quest for information is precluded unless it shows that there are governmental interests sufficiently important to outweigh the possibility of infringement of 1st Amendment rights. Id. at 31 (quoting Buckley, 424 U.S. at 66); see also Nicholson v. State Commn on Judicial Conduct, 50 N.Y.2d 597, 607 (1980) (A proper analysis of interference with First Amendment rights calls for examination of the degree of interference with the First Amendment interests, the strength of the governmental interest justifying the restriction and the means chosen to prevent the asserted evil). The Commissions Subpoena should be quashed because the degree of interference with the Committees First Amendment rights outweighs the slight interest, if any, that the Commission may have in the vast array of internal Committee documents and communications sought by the Subpoena. This is especially so in light of the fact that there is no allegation of unlawful conduct by the Committee. As noted above, the Commissions broad Subpoena requests potentially cover all of the Committees paper and electronic documents and communications over a nearly two-year period. In particular, the Subpoenas request for Documents and Communications relating to the 2012 New York State Senate elections would compel the Committee to produce its most sensitive documents and communications related to political strategies, goals, and plans during an election year. These documents and communications contain internal deliberations related to the Committees public activities, including public advertisements, issue-based advocacy, and

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other political expenditures. A separate Subpoena request specifically demands all Documents and Communications involving the production or proposed production of any media materials, including television or print advertisements or mailers . Such media materials are the core means of political expression for a modern political party. The Commissions demands therefore strike at the very heart of the First Amendments protections for political speech and association. As the United States Supreme Court has emphasized: A political partys independent expression not only reflects its members views about the philosophical and governmental matters that bind them together, it also seeks to convince others to join those members in a practical democratic task, the task of creating a government that voters can instruct and hold responsible for subsequent success or failure. The independent expression of a political partys views is core First Amendment activity no less than is the independent expression of individuals, candidates, or other political committees. Colorado Republican Fed. Campaign Comm., 518 U.S. at 615616 (quoted in Batt, 33 A.D. 3d at 83). If the Committee is required to turn over to the Commission all of its documents and communications related to the 2012 election, as well as all of its documents and communications related to the Committees television or print advertisementstwo of several far-reaching requeststhe Committees exercise of its right to free political expression and association, and that of other political party committees in New York State, would be chilled. See Perry v. Schwarzenegger, 591 F.3d 1147, 1162 (9th Cir. 2010) (stating that the court had little difficulty concluding that disclosure of internal campaign communications could have a chilling effect on the exercise of protected activities, because disclosure of such information can have a deterrent effect on participation in campaigns and can have a deterrent effect on the free flow of information within campaigns, which is [i]mplicit in the right to associate with others to advance ones shared political beliefs); FEC v. Machinists Non-Partisan Political 11

League, 655 F.2d 380, 388 (D.C. Cir. 1981) (release of such information to the government carries with it a real potential for chilling the free exercise of political speech and association guarded by the first amendment). Exposing sensitive political strategies related to state races, as well as the Committees private discussions on the strengths and weaknesses of particular candidates or political issues, would discourage political party committees from engaging in free internal discussions in the future. In contrast to the high degree of interference with the Committees First Amendment interests, the Commissions interest in collecting the Committees internal communications and records is slight. There is no factual basis for the Commissions demands, nor are there any allegations of unlawful activity by the Committee. When such [First Amendment] concerns appear, an administrative agency is not automatically entitled to obtain all material that may in some way be relevant to a proper investigation. Rather, where the disclosure sought will compromise the privacy of individual political associations, and hence risks a chilling of unencumbered associational choices, the agency must make some showing of need for the material sought beyond its mere relevance to a proper investigation. FEC v. Larouche Campaign, 817 F.2d 233, 234 -235 (2d Cir. 1987). While the Commission may disapprove of the fact that New York law allows political party committees to operate housekeeping accounts that are not subject to contribution limits, disapproval of existing law is not an adequate basis for intruding deeply into the most sensitive political communications of a political party. In addition to lacking a sufficient interest in the requested documents and communications, it is apparent from the sheer breadth of the Subpoena that the Commission has not attempted to employ[] means closely drawn to avoid unnecessary abridgment of associational freedoms. Buckley, 424 U.S. at 25. In adopting and fine-tuning New Yorks

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campaign finance disclosure laws, the State has previously weighed its interest in preventing corruption against the need for compelled disclosure of political activities. It has struck a careful legislative balance, under which political party committees must report all receipts and expenditures of their housekeeping accounts to the SBOE, but need not disclose their internal deliberations. The Commissions Subpoena would upset this balance by compelling production of a political party committees most sensitive, internal political communications and records without due cause. See Kalkstein I, at 168, 171-72 (committees purpose of determining whether existing election, ethics and related laws and regulations relating to the activities of [the subpoena target] are adequate to protect the public interest was fully satisfied by the petitioners furnishing respondents the names of contributors, the respective amounts contributed, and where and for what such contributions were spent). Although a quarter century ago, a court did enforce a subpoena for housekeeping account documents against the New York Republican State Committee, rejecting First Amendment objections, that case is distinguishable in several significant respects. New York Republican State Comm. v. New York State Commn on Govt Integrity, 138 Misc. 2d 790 (Sup. Ct. N.Y. Co. 1988), affd,140 A.D.2d 1014 (1st Dept 1988). First, in that case, in which the New York State Commission on Government Integrity requested records of the party committees housekeeping account receipts and expenditures, the subpoena was limited to those records. The Court noted that it fail[ed] to see how limited disclosure of the petitioners housekeeping finances will have a chilling effect on any persons First Amendment rights, in light of the disclosure requirements already in effect pursuant to Election Law Art. 14. Id. at 798 (emphasis added). The Subpoena at issue in this

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case, in contrast, sweeps far more broadly and includes demands for internal and external communications regarding the entire 2012 election. Second, at the time the New York Republican State Committee case was decided, New York States campaign finance law did not yet require disclosure of housekeeping account receipts and expenditures. Today, housekeeping accounts are subject to detailed reporting requirements. See N.Y. Elec. Law 14-102, 14-124(3) (2012) (exempting housekeeping accounts from contribution and receipt limits, but not reporting requirements); 1988 N.Y. Sess. Law Serv. 71 (McKinney) (amending the financial disclosure law to remove the disclosure exception for housekeeping accounts). In amending its campaign finance law, the State has now specifically addressed the role of housekeeping accounts and struck a balance between the need to require disclosure of housekeeping account financial transactions and the countervailing need to avoid undue intrusion into the internal activities and deliberations of a political party committee. Unlike the subpoena at issue in New York Republican State Committee, the Subpoena here would compel disclosure that the State expressly chose not to require when it adopted its housekeeping account disclosure requirements. Moreover, because housekeeping accounts are already required to disclose publicly from whom they raise funds and to whom they make expenditures, the Commission does not now have the same interest, claimed by the Commission in New York Republican State Committee, in obtaining discovery to investigate the use of housekeeping accounts. Detailed information concerning housekeeping account receipts and expenditures is readily available to the Commission from public sources. For all of these reasons, the Subpoena will cause significant and unwarranted interference with the Committees free speech and association rights and should be quashed, and a protective order issued stating that the Committee need not produce the materials.

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D.

The Subpoena is Tainted by Impermissible Partisan Bias. Political parties are embraced by the protections of the Fourteenth Amendment,

U.S Const. amend. XIV, 1, see, e.g., Green Party of Connecticut v. Garfield, 616 F.3d 213, 224-228 (2d Cir. 2010), and are likewise guaranteed fair treatment under the law by the New York State constitution, see, e.g., Madole v. Barnes, 20 N.Y.2d 169, 173 (1967); N.Y. Const. art. I, 6; N.Y. Const. art. I, 11; see also Golden v. Clark, 76 N.Y.2d 618, 624 (1990) (noting that the New York State Constitutions equal protection guarantee is as broad in its coverage as that of the Fourteenth Amendment). The essence of the right to equal protection of the laws is that all persons similarly situated be treated alike. Madole, 20 N.Y.2d at 173 (quoting Myer v. Myer, 271 A.D. 465, 472 (1st Dept 1946), affd, 296 N.Y. 979, 73 N.E.2d 562 (1947)). In other words, the Fourteenth Amendments Equal Protection clause generally prohibits state governments from treating groups differently based on arbitrary or irrational distinctions. See, e.g., City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 446-47 (1985). Discrimination on the basis of political association is generally invidious. See Williams v. Rhodes, 393 U.S. 23, 39 (1968) (Douglas, J., concurring). Furthermore, the Due Process clause prohibits conduct that is so outrageously arbitrary as to constitute a gross abuse of governmental authority. Harlen Associates v. Inc. Vill. of Mineola, 273 F.3d 494, 505 (2d Cir. 2001) (quoting Natale v. Town of Ridgefield, 170 F.3d 258, 263 (2d Cir. 1999)). These principles prohibit the government from selective enforcement of the law. See, e.g., Yick Wo v. Hopkins, 118 U.S. 356 (1886). It is the purpose of the equal protection clause of the Fourteenth Amendment to secure every person within the States jurisdiction against intentional and arbitrary discrimination, whether occasioned by express terms of a statute or by its improper execution through duly constituted agents. Vill. of Willowbrook v. Olech, 15

528 U.S. 562, 564 (2000) (internal quotation and modifications omitted). To demonstrate unconstitutional disparate treatment, a party must show either (1) that [it was] treated differently from other similarly situated individuals, and (2) that such differential treatment was based on impermissible considerations such as intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person, see Harlen Associates, 273 F. 3d at 499 (internal quotations omitted), or that no rational person could regard the circumstances of the plaintiff to differ from those of a comparator to a degree that would justify the differential treatment on the basis of a legitimate government policy and the similarity in circumstances and difference in treatment are sufficient to exclude the possibility that the defendants acted on the basis of a mistake. Clubside, Inc. v. Valentin, 468 F.3d 144, 159 (2d Cir. 2006) (internal quotation omitted). As the New York Court of Appeals has stated, [p]roof of intent may appear from a convincing showing of a grossly disproportionate incidence of nonenforcement against others similarly situated in all relevant respects save for that which furnishes the basis of the claimed discrimination. 303 W. 42nd St. Corp. v. Klein, 46 N.Y.2d 686, 695 (1979). This is necessarily the case because [o]rdinarily . . . a strong inference of illicit motive will be all that can be expected because admission of intentional discrimination is likely to be rare; law enforcement officials are unlikely to avow that their intent was to practice constitutionally proscribed discrimination. Id. Indeed, the grosser the disparity of enforcement and the greater the similarity between those prosecuted and those not prosecutedthe stronger will be the inference of illicit motive, since conscious discrimination may then stand out as the only reasonable explanation for the pattern of enforcement. Id. And because the importance of the right to be free from impermissible selective enforcement must be of more than theoretical value,

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the burden of demonstrating a violation, albeit heavy, must not be so heavy as to preclude any realistic opportunity for success. Id. These tenets regarding selective enforcement are equally applicable here, where there is a selective exercise of the governments investigative power. Media accounts of the Commissions investigation raise substantial concerns that its demand for documents is politically motivated and violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment and the New York State Constitution. The news reports detail several incidents suggesting that the Committee is receiving disfavored treatment relative to other similarly situated political party committees. 4 According to media reports, the Executive has exerted significant influence over the conduct of the Commissions investigation, including ordering the Commission to drop plans to subpoena documents from the New York State Democratic Committee, 5 the party committee with which the Executive is most intimately involved, and from other interests connected to the Executive. 6 Indeed, it appears that the Commission initially sought documents from the Committee and the New York State Independence Party, 7 and possibly the New York State Democratic Senate Campaign Committee, 8 but reportedly agreed to subpoena the New York State Democratic Committee only after the Executives involvement in the Commissions

See, e.g., Cuomos anti-corruption panel stops at investigating his own Democratic party, supra n.2; Cuomos Office Is Said to Rein In Ethics Board He Created, supra n.1. See Cuomos anti-corruption panel stops at investigating his own Democratic party, supra n.2.

5 6

See Kenneth Lovett, Gov. Cuomo leans on independent corruption panel, N.Y. Daily News, Sept. 30, 2013, http://www.nydailynews.com/news/politics/gov-cuomo-leans-independentcorruption-panel-article-1.1471258.
7 8

See Cuomos Office Is Said to Rein In Ethics Board He Created, supra n.1. Cuomos anti-corruption panel stops at investigating his own Democratic party, supra n.2.

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operations became a matter of public controversy. 9 Moreover, as of this date, there is no public evidence that the Commission has in fact issued a subpoena to the New York State Democratic Committee. These media reports suggest that the Commissions Subpoena to the Committee might not have been issued in good faith. They also raise serious questions concerning whether the Commission intends to prosecute all of its outstanding subpoenas with equal vigor. Compare New York State Commn on Govt Integrity, 138 Misc. 2d 790 (where[i]dentical subpoenas were issued to five Democratic Party committees, there was no merit to the petitioners claim that the subpoenas were issued in bad faith as a means to harass the Republican Party). The Executives undue influence over the Commission, and the Commissions delay in issuing a subpoena to the key Democratic Party committee with which the Executive is closely involved, create a strong inference that the Subpoena reflects an arbitrary exercise of government power, and one in which the Commission has treated the Committee differently than other similarly-situated entities based on irrational, arbitrary, or impermissible motives. See 303 W. 42nd St. Corp., 46 N.Y.2d at 695; Harlen Associates, 273 F. 3d at 499. The Subpoena thus violates the Committees Equal Protection and Due Process rights, and for this reason too should be quashed.

See Panel to Investigate State Democratic Party, supra n.3.

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CONCLUSION For the foregoing reasons, the New York State Senate Republican Campaign Committee requests that the Court quash Respondents subpoena duces tecum dated September 20, 2013 and issue a protective order directing that the Committee need not produce the materials requested by it. Dated: October 29, 2013 Washington, DC

Respectfully, COVINGTON & BURLING LLP By: /s/ Michael Chertoff_______ Michael Chertoff Robert K. Kelner 1201 Pennsylvania Avenue Washington, DC 10004 (202) 662-6000 Jennifer Farina 620 Eighth Avenue New York, NY 10018 (212) 841-1140 Attorneys for Petitioner New York State Senate Republican Campaign Committee

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