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


October 21, 2013 Confidential Treatment Requested BY E-MAIL Danya Perry, Esq. Chief of Investigations Commission to Investigate Public Corruption 90 Church Street, 15th Floor New York, NY 10007 Re: Subpoena Duces Tecum to New York State Senate Republican Campaign Committee—Housekeeping

Dear Ms. Perry: We write on behalf of our client, the New York State Senate Republican Campaign Committee (“Committee”), in response to the Commission to Investigate Public Corruption’s (“Commission”) subpoena duces tecum seeking documents related to the Committee’s housekeeping account. Pursuant to CPLR Section 2304, and for the reasons stated below, we respectfully request that the Commission withdraw its subpoena of the Committee’s housekeeping account records and communications. The Committee received the Commission’s subpoena on September 20, 2013. As you know, the subpoena called for production of documents by September 30, 2013, but the Committee and the Commission mutually agreed to extend that deadline to October 30, with a rolling production to begin by September 30. On September 30, 2013, the Committee responded fully to Request Nos. 1 and 3 of the subpoena, producing documents that consisted exclusively of an organizational chart of Committee employees and publicly filed reports of the Committee’s expenditures related to the maintenance of a permanent party headquarters and payment of permanent staff. The Committee was already required to file—and has filed—reports of its housekeeping account’s receipts and expenditures with the New York State Board of Elections (“SBOE”). Those records are sufficient to identify all of the housekeeping account’s financial transactions, and are available to the Commission and the public on the SBOE’s website. The Committee has reviewed the remainder of the subpoena, and requests that the Commission withdraw the remaining requests. As an initial matter, it is not clear that the Commission has met the conditions precedent to exercising subpoena power. Furthermore, to

Danya Perry, Esq. October 21, 2013 Page 2 the extent that the subpoena calls for documents not already produced by the Committee, it is overbroad and burdensome; infringes upon the Committee’s First Amendment rights of free political expression and association; and reflects that the Commission is operating in a partisan manner prejudicial to the Committee. I. The Commission Has Not Shown That The Subpoena Is Within Its Authority.

The Committee is concerned that 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.” Under Governor Cuomo’s Executive Order establishing the Moreland Commission, the Commission is required unanimously to adopt “rules designed to provide transparency while protecting the integrity of the investigation and rights to privacy.” 1 Promulgation of those rules is a predicate to the Commission’s subpoena power. 2 The Committee joins in the request of the Senate and Assembly that the Commission make available its procedures and rules. Absent public release of those procedures and rules, it is not possible to assess whether the Commission’s work will indeed be conducted with transparency, integrity, and respect for privacy, as required by the Governor’s Executive Order. II. The Subpoena is Overbroad and Unduly Burdensome.

The Commission’s subpoena for Committee documents and communications is overbroad and unduly burdensome. It includes requests for all financial records, and for “Documents and Communications relating to the 2012 New York State Senate elections.” These requests are sweepingly broad. “New York State Senate elections” are the very purpose of the Committee’s existence. Consequently, the subpoena potentially demands all of the Committee’s paper and electronic documents and communications over a nearly two-year period, including an election year. The Committee has already produced to the Commission or publicly provided to the SBOE reports of all of its financial transactions. The Commission has no factual basis for asserting that the voluminous additional materials it seeks are relevant to the investigation. 3 Even if the Commission is within its authority to issue the subpoena, no agency of government
1 2 3

Executive Order (Gov. Andrew Cuomo) No. 106 § (V)(2). Id.

See New York City Dep’t of Investigation v. Passannante, 148 A.D.2d 101, 104 (1st Dep’t 1989) (“if a motion is made to quash an office subpoena ‘it is incumbent upon the issuer to come forward with a ‘factual basis’ which establishes the relevancy of the items sought to the subject matter of the investigation before a witness will be compelled to comply with the subpoena's mandate’”) (quoting Virag v. Hynes, 54 N.Y.2d 437, 442 (1981)).

Danya Perry, Esq. October 21, 2013 Page 3 may conduct an unlimited and general inquisition into the affairs of those within its jurisdiction solely on the prospect of discovering possible misconduct, especially by means of a subpoena duces tecum. 4 As discussed below, responding to the Commission’s broad requests would be extremely burdensome. In addition to the administrative burden of producing all or nearly all of the Committee’s paper and electronic documents and communications over the course of almost two years, the subpoena places undue burdens on the Committee’s rights of free political expression and association under the United States and New York State Constitutions. III. The Subpoena Unnecessarily Abridges the Committee’s First Amendment Rights of Free Political Expression and Association.

The Commission’s demands for documents reflecting the Committee’s internal strategic communications are not only outside the scope of the Commission’s authority and irrelevant to its investigation, but also violate the Committee’s fundamental First Amendment rights and its free speech and association rights under the New York State Constitution. The Committee is a political party committee, and the Commission has made an aggressive demand for that political party committee’s most sensitive documents and communications related to political strategies, goals, and plans. If the Committee is required to turn over to the Commission all of its documents and communications related to the 2012 election—one of several far-reaching requests—the Committee’s exercise of its right to free political expression and association, and that of other political party committees in the state, would be chilled. The Commission seeks the disclosure of sensitive internal political communications without asserting an adequate relationship to a sufficiently important state interest. 5 There is no factual basis for the Commission’s demands, nor are there any allegations

See Comm’n on Lobbying v. Simmons, 4 Misc. 3d 749, 754 (Sup. Ct., Albany County 2004) (determining that although the New York Temporary State Commission on Lobbying “clearly has the legal authority to issue subpoenas,” it “failed to satisfy [the] court upon the issues of a basis for the inquisition into the private financial records of [the subpoenaed person] and the relevance of those records.”). The court in Simmons emphasized that “‘[i]t is ancient law that 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.” Id. (quoting Matter of Goverl Consulting Corp. v New York Temporary State Commn. on Lobbying, 113 A.D.2d 611, 614 (3d Dep’t 1986) (Mahoney, P.J., dissenting), rev’d, 68 N.Y.2d 839 (1986) (internal quotations omitted)).

Local 1814, Int’l Longshoremen’s Ass’n, AFL-CIO v. Waterfront Comm’n of New York Harbor, 667 F.2d 267, 271 (2d Cir. 1981) (“Compelled disclosure” of First Amendment (continued…)

Danya Perry, Esq. October 21, 2013 Page 4 of unlawful activity by the Committee. 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. It is apparent from the sheer breadth of the subpoena that the Committee has not attempted to employ closely drawn means to avoid unnecessary abridgement of associational freedoms. In the absence of any allegation of illegal conduct, much less evidence of it, the Commission’s interests in its investigation are not so compelling that it may undertake a fishing expedition. In adopting and fine-tuning New York’s 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 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 Commission’s subpoena would upset this careful legislative balance by compelling production of a political party committee’s most sensitive, internal political communications and records without due cause. IV. The Subpoena Is Tainted By Partisan Bias.

Media accounts of the Commission’s 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. These reports call into question the propriety of the subpoena and the process by which it was issued. Media stories have indicated that the Executive Branch exerted significant influence on the Commission’s investigation and ordered the Commission to drop plans to subpoena documents from the New York State Democratic Party 6 and other interests connected

protected materials “is not permitted unless it is substantially related to a compelling governmental interest”) (citing Buckley v. Valeo, 424 U.S. 1, 64 (1976)); Nicholson v. State Comm’n 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.”).

See Kenneth Lovett, Cuomo's anti-corruption panel stops at investigating his own Democratic party, N.Y. Daily News, Oct. 3, 2013,; Jesse McKinley & Thomas Kaplan, Cuomo’s Office Is Said to Rein In Ethics Board He Created, N.Y. Times, Oct. 8, 2013, (continued…)

Danya Perry, Esq. October 21, 2013 Page 5 to the Executive. 7 Indeed, several media reports suggest that the Commission initially sought documents from only the Committee and the New York State Independence Party, 8 and reportedly agreed to subpoena the New York State Democratic Party only after the Executive Branch’s involvement in the Commission’s operations became public, which had led to public condemnation of the Commission’s partisan nature. 9 These media reports are more than troubling, and they suggest that the Commission’s 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. Moreover, there is, as of this date, no public evidence that the Commission has in fact issued a subpoena to the New York State Democratic Party. The subpoena and the process by which it was issued likewise violate the Committee’s Equal Protection and Due Process rights under the United States and New York State Constitutions. The Commission’s initial choice to subpoena only the Committee and Independence Party, and not the similarly situated Democratic Party, appears to have been based on irrational, arbitrary, or impermissible motives. The media reports detailing the Executive Branch’s influence over the Commission, and the fact that the Commission, at best, delayed issuing a subpoena to the Democratic Party until the media drew attention to the Commission’s discriminatory behavior, provide reason to believe that both the Commission’s process and the resulting subpoenas reflect arbitrary exercises of government power.

See Kenneth Lovett, Gov. Cuomo leans on ‘independent’ corruption panel, N.Y. Daily News, Sept. 30, 2013,
8 9

See Cuomo’s Office Is Said to Rein In Ethics Board He Created, supra n.6.

See Thomas Kaplan, Panel to Investigate State Democratic Party, N.Y. Times, Oct. 15, 2013,

Danya Perry, Esq. October 21, 2013 Page 6 * * *

For all of these reasons, the Committee respectfully requests that the Commission withdraw its remaining requests to the Committee. If you have any questions, please feel free to contact me or my colleague Robert Kelner at (202) 662-6000. Sincerely,

Michael Chertoff

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