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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

VOICE OF TEACHER EDUCATION/COMMITTEE ON


POLITICAL EDUCATION, ANDREW PALLOTTA, et al.,

Plaintiffs,
10-CV-0961
-against-
(GTS)
N.Y.S. BOARD OF ELECTIONS, et al.
Defendants.

MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFFS'


APPLICATION FOR A TEMPORARY RESTRAINING ORDER
AND A PRELIMINARY INJUNCTION

ANDREW M. CUOMO
Attorney General of the State of New York
Attorney for Defendants
The Capitol
Albany, New York 12224-0341

Krista A. Rock, Bar Roll No. 508207


Kelly Munkwitz, Bar Roll No. 509910
Assistant Attorneys General, of Counsel
Telephone: (518) 474-3602
Fax: (518) 473-1572 (Not for service of papers) Date: August 13, 2010
Table of Contents

Preliminary Statement......................................................................................................................1

Summary of Plaintiffs' Claims .........................................................................................................1

Argument .........................................................................................................................................2

PLAINTIFFS ARE NOT ENTITLED TO INJUNCTIVE RELIEF....................................2

A. Plaintiffs Have Not Established Irreparable Injury With Respect to Three


of Their Claims ........................................................................................................3

B. Plaintiffs Fail to Demonstrate a Likelihood of Success on the Merits ....................8

1. Plaintiffs Fail To Establish A Likelihood of Success On The Merits


Because The Supreme Court's Decision in Citizens United Does Not
Extend To PACs......................................................................……………8

2. Plaintiffs Fail To Demonstrate A Likelihood Of Success On The Merits


Because They Fail To Demonstrate That New York's Contribution
Limitations Violate the First Amendment……………………………….12

3. There Has Been no Infringement of NYSUT's Right to Communicate its


Political Views to its Members…………………………………….…….16

4. Election Law section 14-118 Does Not Act as an Unconstitutional Prior


Restraint on Speech ……………………………………………….…….19

C. The Requested Injunctive Relief Would Substantially Harm the Defendants and
the Public…………………………………………………………………….…..21

Conclusion .....................................................................................................................................24

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Preliminary Statement

This is a civil rights action brought pursuant to 42 U.S.C. § 1983 by the New York State

United Teachers ("NYSUT") and its political action committee ("PAC"), Voice of Teacher

Education/Committee on Political Education (VOTE-COPE), challenging certain campaign finance

restrictions imposed by the New York State Board of Elections (the "Board") in enforcing provisions

of the state Election Law. The defendants are the Board and its individual commissioners.

Plaintiffs have also filed an application for a temporary restraining order ("TRO") and a

preliminary injunction. Dkt. No. 8. That motion seeks to enjoin defendants from: "1) prohibiting

political action committees from making independent expenditures to support or oppose political

candidates; 2) limiting the contributions that can be made to political committees that make only

independent expenditures; 3) prohibiting unions from communicating with their own members to

support or oppose political candidates or ballot issues outside the context of their regular members

unless they first [comply with certain registration and filing requirements]; 4) requiring political

committees to list the candidates or ballot issues they intend to support or oppose and file committee

authorization status forms prior to making any contributions or expenditures." Id. For the reasons

set forth below, plaintiffs are not entitled to the injunctive relief they seek and their motion should be

denied.

Summary of Plaintiffs' Claims

According to the complaint, VOTE-COPE intends to make "independent expenditures" on

behalf of candidates running for election this Fall. Compl., ¶ 26. Campaign "expenditures" are

direct payments for goods and services related to a candidacy (e.g., direct mail, phone calls, polling)

-- as opposed to contributions to the candidate. Id. at ¶¶ 26, 28, 37. "Independent expenditures" are

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expenditures that are not coordinated with the candidate. Id. at ¶ 27. The Board, however, prohibits

independent expenditures by PACs. Id. at ¶ 43. PACs, such as VOTE-COPE, are restricted to

making contributions, which, for the State Senate, as an example, are limited to $6,000 for primary

elections and $9,500 for general elections. Id. at ¶¶ 41, 43.

Plaintiffs first allege that the Board's prohibition on PACs making independent expenditures

violates their free speech and association rights under the First Amendment. Compl., First Cause of

Action; Pls.’ Mem., 10-13. Second, they claim that the Board's limitations on contributions to

unauthorized committees that make only independent expenditures violate their First Amendment

rights. Compl., Second Cause of Action; Pls.’ Mem. 13-14. Third, plaintiffs allege that NYSUT

may, in the future, be subjected to classification as a political committee if it takes certain actions.

Pls.’ Mem., 3-5. This, according to plaintiffs, would infringe upon the right of NYSUT to

communicate its political views to its members. Id. at 14-15. Finally, plaintiffs allege that Election

Law section 14-118, by requiring unauthorized committees to identify the candidates they intend to

support or oppose when they register with the Board of Elections, acts as an unconstitutional prior

restraint on speech. See generally Compl., ¶¶ 16, 55-62, 82; Pls.’ Mem., 5-7, 15-16. Plaintiffs seek

injunctive relief with respect to each of these four claims.

Argument

PLAINTIFFS ARE NOT ENTITLED TO INJUNCTIVE RELIEF

The standards for issuing a TRO and granting preliminary injunctive relief are the same. See

Harris v. Diaz, 2004 WL 2912888, at *3 (S.D.N.Y. December 14, 2004) (copy attached to Appendix

as Exhibit 1). A preliminary injunction is “an extraordinary and drastic remedy” that may only be

awarded upon “a clear showing” that the plaintiff is entitled to the relief. Mazurek v. Armstrong,

520 U.S. 968, 972 (1997) (per curiam). “A plaintiff seeking a preliminary injunction must establish
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that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of

preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public

interest.” Winter v. Natural Res. Def. Council, Inc., ___ U.S. ___, 129 S. Ct. 365, 374 (2008).

Moreover,

[w]hen, as here, the moving party seeks a preliminary injunction that will affect
government action taken in the public interest pursuant to a statutory or regulatory
scheme, the injunction should be granted only if the moving party meets the more
rigorous likelihood-of-success standard. That is, plaintiffs must establish a clear or
substantial likelihood of success on the merits.

Sussman v. Crawford, 488 F.3d 136, 140 (2d Cir. 2007). This is especially true here where the

injunctive relief requested does not merely maintain the status quo, but grants the movants

substantially all the relief they ultimately seek. See Eng v. Smith, 849 F.2d 80, 82 (2d Cir. 1988).

It is respectfully submitted that under these controlling standards plaintiffs cannot meet their

weighty burden of demonstrating that a preliminary injunction is required.

A. Plaintiffs Have Not Established Irreparable Injury With Respect to


Three of Their Claims

While plaintiffs suggest that the Court presume irreparable harm based on their allegation of

a First Amendment violation, Pls.’ Memo of Law ("Pls.’ Mem."), p. 8, the law in this Circuit “has

‘not consistently presumed irreparable harm in cases involving allegations of the abridgement of

First Amendment rights’." New York Civ. Liberties Union v. New York City Transit Auth., 675 F.

Supp. 2d 411, 428 (S.D.N.Y. 2009) (quoting Bronx Household of Faith v. Bd. of Educ. of City of

N.Y., 331 F.3d 342, 349 (2d Cir. 2003)). Instead, “in circumstances in which a plaintiff does not

allege injury from a rule or regulation that directly limits speech, irreparable harm is not presumed

and must still be shown.” Doninger v. Niehoff, 527 F.3d 41, 47 (2d Cir. 2008). Here, plaintiffs’

arguments to the contrary notwithstanding, it is far from clear that the record establishes irreparable
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harm as to certain of plaintiffs’ claims.

Insofar as plaintiffs’ first claim, alleging a First Amendment violation regarding

expenditures, involves a statute which “directly limits speech, the irreparable nature of the harm may

be presumed." New York Civ. Liberties Union, 675 F. Supp. 2d at 428. Plaintiffs remaining

arguments, however, do not concern direct speech limitations and they cannot, on this record,

establish that the alleged violations pose any imminent or substantial threat to their First Amendment

rights.

In Winter v. Natural Res. Def. Council, Inc., 129 S. Ct. 365, the Supreme Court found an

abuse of discretion where the lower courts applied a preliminary injunction standard that was too

lenient and “addressed [the relevant] considerations in only a cursory fashion.” Id. at 370, 378, 382.

As the Court explained, an injunction cannot issue merely because it is possible that there will be an

irreparable injury to the plaintiff; it must be likely that there will be. Id. at 375 (emphasis added).

It emphasized that: “Issuing a preliminary injunction based only on a possibility of irreparable harm

is inconsistent with our characterization of injunctive relief as an extraordinary remedy that may

only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Id. at 375-76.

The Second Circuit has also recognized that “a showing of probable irreparable harm is the

single most important prerequisite for the issuance of a preliminary injunction.” Reuters Ltd. v.

United Press Int’l, Inc., 903 F.2d 904, 907 (2d Cir. 1990) (internal quotations omitted). “A plaintiff

seeking injunctive relief bears the burden of demonstrating [he] will suffer ‘real and imminent, not

remote, irreparable harm’ in the absence of a remedy.” Henrietta D. v. Bloomberg, 331 F.3d 261,

290 (2d Cir. 2003) (quoting Levin v. Harleston, 966 F.2d 85, 90 (2d Cir.1992)), cert. denied, 541

U.S. 936 (2004). Here, the record presents no basis for finding that plaintiffs will suffer irreparable

harm without the imposition of the injunction with respect to their second, third and fourth claims,
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which relate to contributions VOTE/COPE might someday make to an unauthorized committee that

is not yet formed, communications by NYSUT to its members and the legality of New York Election

Law section 14-118.

Plaintiffs’ second claim asserts the Board's limitations on contributions to unauthorized

committees that make only independent expenditures violate their First Amendment rights. Compl.,

Second Cause of Action; Pls.’ Mem. 13-14. However, this claim is purely hypothetical. The limits

about which they complain relate to contributions from PACs to an unauthorized committee,

however, plaintiffs concede that they have not created such an unauthorized committee. Therefore,

the contribution limits challenged herein do not, at this point, apply to VOTE/COPE, and cannot

serve as a basis for injunctive relief. See Church of St. Paul & St. Andrew v. Barwick, 67 N.Y.2d

510, 535 (1986) (“The general rule is that a request for an injunction or a declaratory judgment is

premature if the harm to the plaintiff is contingent upon events that may never occur.”); Kamerling

v. Massanari, 295 F.3d 206, 214 (2d Cir. 2002) (“irreparable harm must be shown to be actual and

imminent, not remote or speculative”); New York v. Nuclear Regulatory Comm., 550 F.2d 745, 756

(2d Cir. 1977) (quoting Holiday Inns of America, Inc. v. B&B Corp., 409 F.2d 614, 618 (3d Cir.

1969)) (Courts must take caution so that A[t]he dramatic and drastic power of injunctive force may

be unleashed only against conditions generating a presently existing actual threat; it may not be used

simply to eliminate a possibility of a remote future injury, or a future invasion of rights."). see also

Kamerling v. Massanari, 295 F.3d 206, 214 (2d Cir. 2002) (“irreparable harm must be shown to be

actual and imminent, not remote or speculative”).

From plaintiffs’ perspective, the third issue concerns an alleged infringement on the right of

NYSUT to communicate its political views to its members. Pls.’ Mem., 3-5, 14-15. As will be

outlined below, defendants strongly disagree with plaintiffs’ characterization of that claim.
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However construed, it is clear that the alleged harm is hypothetical and contingent and certainly not

imminent. Plaintiffs' allegation, in summary, is that NYSUT may in the future be subjected to

classification as a political committee if it takes certain actions. Id. at 3-5. In and of itself this

argument clearly is speculative. More importantly, however, the adverse designation plaintiffs seek

to avoid would not result simply from their own actions. Under the advisory opinion with which

they now take issue, they would be designated a political committee only if they undertake a

particular type of expenditure and the candidate in whose interest they acted does not then report the

expenditures as a “contribution in kind.” Id. at 4-5, Reilly Aff, ¶¶ 46-48. Consequently, viewed in

the light most favorable to it, NYSUT would suffer an injury only if an as of yet unidentified third

party, i.e. a candidate, took certain actions. The speculative nature of this claim makes injunctive

relief inappropriate. Kamerling, 295 F.3d at 214; New York v. Nuclear Regulatory Comm., 550

F.2d at 756.

The final issue raised in the complaint and pending motions concerns the requirement of New

York Election Law section 14-118 that certain types of committees recognized under New York’s

regulatory scheme identify the candidates they intend to support or oppose during an election cycle.

See generally Compl., ¶¶ 16, 55-62, 82. Plaintiff VOTE/COPE is a political action committee

organized under New York law. Id. at ¶ 5. By its own allegation, however, section 14-118 does not

apply to political action committees. Id. at ¶ 58. VOTE/COPE certainly cannot claim to suffer

irreparable injury from a statutory provision to which it is not currently subject. The possibility that

VOTE/COPE might at some future time establish a committee subject to section 14-118, id. at ¶ 60,

or that NYSUT might be deemed subject to the provision as the result of the actions of third parties,

see supra; Pls.’ Mem., 3-5, is purely hypothetical and plainly insufficient to establish irreparable

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harm at this juncture. Kamerling, 295 F.3d at 214; New York v. Nuclear Regulatory Comm., 550

F.2d at 756.

Plaintiffs’ “cries of urgency are [also] sharply undercut by [their] own rather leisurely

approach to . . . preliminary injunctive relief.” Charlesbank Equity Fund II v. Blinds To Go, Inc.,

370 F.3d 151, 163 (lst Cir. 2004). Accord, e.g., Quince Orchard Valley Citizens Ass’n v. Hodel, 872

F.2d 75, 80 (4th Cir. 1989) (“[A] period of delay may . . . indicate an absence of the kind of

irreparable harm required to support a preliminary injunction.” (Internal quotation marks omitted.));

11A Charles Alan Wright, Arthur R. Miller, & Mary Kay Kane, Fed. Prac. & Proc. Civ.2d § 2948.1,

at 156 & n.12. Although Citizens United, upon which plaintiffs largely rely, was decided on January

21, 2010, plaintiffs did not file their application for injunctive relief until the eve of the primary

election season. The Board of Elections Advisory Opinion with which they now take issue was

issued more than thirty years ago. To the extent they claim they may not be able to speak as freely

as they would wish about the rapidly approaching elections, the potential harm they speak of is

caused by their own delay. See, e.g., Salt Lake Tribune Pub. Co., LLC v. AT & T Corp., 320

F.3d1081, 1106 (10th Cir. 2003) (“We will not consider a self-inflicted harm to be irreparable.”).

Finally, plaintiffs face no imminent or irreparable injury from the possibility of an

enforcement proceeding. Plaintiffs claim that they face punishment for breaking the law, but they

provide only a hypothetical sequence of events that is far too speculative to warrant preliminary

injunctive relief.

The alleged harm depends upon the Board’s instituting and completing an investigation,

which must be preceded by an assessment and review of the matter. Affidavit of Elizabeth Hogan

("Hogan Aff."), ¶¶ 71-72. The harm plaintiffs fear is far from imminent. Indeed, an

overcontribution analysis would not be conducted by the Board until after the completion of the
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2010 election cycle, in or about January, 2011. Id. at ¶ 70. Accordingly, the likelihood that

plaintiffs would suffer anything beyond an investigative proceeding during the life of a preliminary

injunction is remote.

Having to respond to an administrative enforcement proceeding is not irreparable harm.

“‘Mere litigation expense, even substantial and unrecoupable cost, does not constitute irreparable

injury.’” FTC v. Standard Oil Co. of Cal., 449 U.S. 232, 244 (1980), quoting Renegotiation Board v.

Bannercraft Clothing Co., 415 U.S. 1, 24 (1974). Thus, any burden associated with responding to a

possible future Board enforcement proceeding cannot constitute irreparable harm warranting

preliminary injunctive relief.

In sum, with respect to plaintiffs' second, third and fourth claims, which do not concern

direct speech limitations, plaintiffs cannot, on this record, establish that the alleged violations pose

any imminent or substantial threat to their First Amendment rights. Injunctive relief with respect to

those claims should, therefore, be denied.

B. Plaintiffs Fail to Demonstrate a Likelihood of Success on the Merits

The requested injunctive relief should be denied on the ground that plaintiffs cannot make

the requisite showing of a "substantial likelihood of success on the merits." Sussman, 488 F.3d at

140.

1. Plaintiffs Fail To Establish A Likelihood of Success On The Merits Because


The Supreme Court's Decision in Citizens United Does Not Extend To PACs

Plaintiff's First Cause of Action is premised on the prohibition of VOTE/COPE making

independent expenditures. Compl., ¶¶ 80, 83-85. In support of their argument, plaintiffs rely

heavily upon the Supreme Court's decision in Citizens United v. Federal Election Commn., __ U.S.

__, 130 S.Ct. 876 (2010). See Pls. Mem. pp.11-13. The Court in Citizens United addressed the

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ability of corporations and unions to make independent expenditures for speech expressly

advocating the election or defeat of a candidate. 130 S.Ct. at 886. However, VOTE/COPE is

neither a corporation nor a union. Rather it is a PAC. Compl., ¶ 5. As explained by the Court in

Citizens Union, a PAC is a creation of a corporation that has the ability to speak. Id. at 896.

Plaintiffs acknowledge that a PAC "is a 'different animal' from the other types of political

committees.'" Pls'. Mem. p. 9, citing Kermani v. New York State Bd. of Elections, 487 F.Supp.2d

101, 104, n.4 (N.D.N.Y. 2006). Indeed, PACs are created for a specific purpose: to make

contributions. Hogan Aff. ¶ 43. Because the purpose, activities and reporting requirements of PACs

differ from those of corporations, the holding in Citizens United should not be extended to

incorporate PACs.

In New York, a PAC is a political committee created under Election Law. Hogan Aff. ¶¶ 14,

16. PACs, which are created for a specific purpose, may make contributions to candidates, up to

each candidate's contribution level, but may not make expenditures to aid or take part in the

nomination, election or defeat of a candidate. Hogan Aff. ¶¶ 16, 29, 43. Unlike other entities, PACs

are not required to file authorization statements, nor are they required to file Committee

Registration/Treasurer and Bank Information forms. Hogan Aff. ¶¶ 17, 22. PACs are relieved of

these reporting requirements because by their nature, they may only make contributions. As the

contributions are disclosed in both the PAC's campaign finance report and the recipient

candidate/committee's report, the Board is able to obtain the necessary information necessary to

ascertain applicable limits, without the additional disclosures. Hogan Aff. ¶ 29.

Disclosure provisions serve an important public purpose in that they inform the electorate "as

to where political campaign money comes from and how it is spent by the candidate." Buckley v.

Valeo, 424 U.S. 1, 66-67 (1976). They further "deter actual corruption and avoid the appearance of
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corruption by exposing large contributions and expenditures to the light of publicity." Id. at 67.

Finally, they are "an essential means of gathering the data necessary to detect violations of . . .

contribution limitations." Id. at 67-68. New York uses an electronic filing system for campaign

disclosures, which permits the Board to make this information available to the public in an

expeditious manner, thereby providing the highest level of transparency. Hogan Aff. ¶ 10.

Under current New York law and the current electronic filing system used by New York, a

PAC does not, and cannot, report independent expenditures. Hogan Aff. ¶ 43. As such, should

Citizens United be applicable to PACs, the electorate would be deprived of information as to how

much money was being spent and on whom. Put another way, applying Citizens United to PACs

would undermine the important public purposes of disclosure as identified by the Supreme Court in

Buckley.

Notably, in its decision, the Supreme Court distinguishes PACs from other entities. 130

S.Ct. 876, 897. Indeed, unlike pre-Citizens United corporations, it expressly finds that PACs, by

their nature, are afforded the First Amendment right to speech. Id. While the Court discusses the

"onerous restrictions" to which a PAC's speech is subjected, it does not suggest that such restrictions

are impermissible. See id. at 897-98. Indeed, there is, in fact, nothing in Citizens United to suggest

that the Court intended its holding to be extended to PACs, which in New York are created for the

sole purpose of providing contributions.

While Citizens United dismissed the corporation’s ability to speak through a PAC as a

potential remedy for the purported constitutional problem, it did so on the basis of sweeping factual

conclusions about PACs that do not apply here. See id. Based upon the burdens associated with

creating a PAC, the Court expressed its concern that “a corporation may not be able to establish a

PAC in time to make its views known regarding candidates and issues in a current campaign.” Id. at
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898. Those concerns are not present factually in this case. First, NYSUT has already established

and operates a PAC. More importantly for purposes of the instant motion, under Citizens United

NYSUT is free to make independent expenditures in support of or in opposition to candidates. As

such, it will be able “make its views known” during this election cycle even in the absence of an

injunction.

In support of their argument that Citizens United applies to PACs, plaintiffs rely upon the

Ninth Circuit's decision in Long Beach Area Chamber of Commerce v. City of Long Beach, 603

F.3d 684 (9th Cir. 2010).1 See Pls. Mem. pp. 10-12. While the Long Beach court conducted an

extensive First Amendment analysis as set forth in Citizens United, it completely failed to analyze

the distinction between a corporation and a PAC. See 603 F.3d at 694-695. The court ignored the

fact that a PAC, unlike a corporation, is a political creature created solely to make political

contributions. See id. Because the Ninth Circuit does not address the unique purpose and function

of a PAC, its decision to extend Citizens United to PACs should be disregarded.

In sum, by its very language, Citizens United addresses the ability of corporations and unions

to make independent expenditures to advocate the election or defeat of a candidate. Id. at 886. The

Court did not extend its holding to PACs, which are unique entities created for the sole purpose of

providing contributions to political campaigns and committees. In fact, the Court expressly

distinguished PACs from the corporations at issue in that case. As such, the holding in Citizens

United should not be extended to apply to PACs. Therefore, plaintiffs fail to demonstrate a

likelihood of success on the merits.

1 The defendant in Long Beach filed a petition for certiorari on July 28, 2010.
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2. Plaintiffs Fail To Demonstrate A Likelihood Of Success On The Merits Because They
Fail To Demonstrate That New York's Contribution Limitations Violate the First
Amendment

As stated above, the speculative nature of plaintiffs' claim that New York's contribution

limits violate the First Amendment, namely, that the challenged contribution limits do not, at this

point, apply to VOTE/COPE, makes injunctive relief inappropriate. In any event, as noted by the

United States Supreme Court, "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." Buckley v. Valeo, 424 U.S. 1, 20, 96 S.Ct.

612 (1976). Consequently, such a limitation is not subject to the strict scrutiny standard applicable

to a limitation upon expenditures. Green Party of Connecticut v. Garfield, __ F.3d __, 2010 WL

2737134, *5 (2d Cir. July 13, 2010). Rather, the standard to be applied is whether it is "closely

drawn to match a sufficiently important interest." Id. (internal quotations omitted), quoting,

Buckley, 424 at 20.

The rationale behind the lesser standard applied to contributions is based on the "speech by

proxy" nature of contributions. California Medical Assn. v. Federal Election Commission, 453 U.S.

182, 196, 101 S.Ct. 2712 (1981). As explained by the Court:

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.

Buckley, 424 U.S. at 21. Thus, a cap on contributions "involves little direct restraint" on speech

because it "does not in any way infringe the contributor's freedom to discuss candidates and issues."

Id.

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The Supreme Court's decision in Citizens United did not disturb the Court's holding in

Buckley or its progeny. See Green Party of Connecticut, 2010 WL 2737134, at 5-6 (applying the

standard set forth in Buckley). Indeed, the Court explained its holding in Buckley and upheld it.

Citizens United, 130 S.Ct. at 908. As the Buckley holding has not been disturbed, it is controlling

here.

Plaintiffs challenge the limit on contributions, alleging that if VOTE/COPE were to form an

unauthorized committee, it would be limited in the amount it could contribute. Pls. Mem. pp. 13-14.

Notably, VOTE/COPE does not allege that it currently has such an unauthorized committee, or even

that it intends to create on. See generally, Complaint. In support of its argument with respect to

contributions, plaintiffs rely heavily upon the D.C. Circuit's decision in SpeechNow.Org v. Federal

Election Commn., 599 F.3d 686 (D.C. Cir. 2010). See Pls. Mem. pp. 13-14. Plaintiffs' reliance is

misplaced for two reasons. First, SpeechNow.Org. cannot be applied to this case or any other

because it expressly limited its holding to SpeechNow, "an independent expenditure-only group."

599 F.3d at 696. Notably, SpeechNow, unlike the union and PAC plaintiffs here, is an

"unincorporated nonprofit association" that "aquire[s] funds solely through donations by

individuals." Id. at 689. Moreover, in contrast to VOTE/COPE, SpeechNow was not affiliated with

any political committees, nor with a union or corporation.

Secondly, and more importantly, the court in SpeechNow.Org relied upon the analysis in

United Citizens to support its holding. Id. at 695-96. United Citizens expressly used the strict

scrutiny standard of review. 130 S.Ct. at 898. However, such a high standard is not applicable in a

case involving political contributions. See id. at 908; Buckley, 424 U.S. at 20; Green Party of

Connecticut, 2010 WL 2737134, at 5. The SpeechNow.Org court expressly declined to consider the

standard of review, relying solely on the analysis in United Citizens. 599 F.3d at 696. In cursory
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fashion, the court found that because a ban on expenditures does not implicate the "anticorruption

interest," a limit on contributions cannot. 599 F.3d at 696. The SpeechNow.Org. court's perfunctory

treatment failed to examine whether contributions to political groups may have a corrupting effect

distinct from expenditures by such groups. Moreover, it failed to apply the proper standard of

review.

The SpeechNow.Org. court's declination to address a governmental entity's "anticorruption

interest" blatantly ignores the Supreme Court's holdings in Buckley and its progeny. However, the

Court in Citizens United distinguished its holding from that in Buckley and expressly declined to

consider the precedents involving campaign contributions. 130 S.Ct. at 908-09. Thus, the Citizens

United Court did not determine whether a limitation on contributions to parties for indirect

expenditures is "closely drawn to match a sufficiently important interest." Because the holdings in

the contribution cases remain good law, the limitations on contributions must be analyzed using the

lower standard. See Green Party of Connecticut, 2010 WL 2737134, at 5.2

It cannot be disputed that defendants here have a legitimate public interest basis to limit

contributions. An "anticorruption interest" has long been recognized as a legitimate basis to restrict

campaign contributions. Green Party of Connecticut, 2010 WL 2737134, at *7; see, e.g., Buckley,

424 U.S. at 26; McConnell v. Federal Election Commission, 540 U.S. 93, 150, 124 S. Ct. 619

(2003), overruled on other grounds, Citizens' United v. Federal Election Commn. __ U.S. __, 130

2 Plaintiffs also rely upon the D.C. Circuit's decision in Emily's List v. Federal Election Commn.,
581 F.3d 1 (2009) and the Ninth Circuit's recent decision in Long Beach Area Chamber of
Commerce v. City of Long Beach, 603 F.3d 684 (9th Cir. 2010). See Pls. Mem. pp. 13-14. Notably,
the defendant in Long Beach filed a petition for certiorari on July 28, 2010. Defendants submit that
the reasoning in these cases is flawed and further note that the Second Circuit has not ruled on
whether contribution limits are permissible. However, it has confirmed that the Supreme Court's
decision in Citizens Union did not disturb the holding in Buckley. See Green Party of Connecticut,
1010 WL 2737134, at *5.
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S.Ct. 876, 881 (2010); Nixon, 528 U.S. at 389. The anticorruption interest "extends beyond simple

cash-for-votes corruption to curbing 'undue influence on an officeholder's judgment and the

appearance of such influence.'" McConnell, 540 U.S. at 150, quoting, Federal Election Commn. v.

Colorado Republican Federal Campaign Committee, 533 U.S. 431. 456, 121 S. Ct. 2351 (2001).

The fact that the contributions at issue here are to a committee rather than a candidate is of

little consequence because the middleman character of the committee does not remove the threat of

corruption. In McConnell, the Supreme Court noted that even contributions to indirect expenditures

may lead to the appearance of corruption. See 540 U.S. at 144-45. Parties receiving contributions to

indirectly assist candidates "serve as 'agents for spending on behalf of those who seek to produce

obligated officeholders.'" Id. at 145, quoting, Colorado, 533 U.S. at 452.

Indeed, a recent Supreme Court case amply illustrates the danger of this type of corruption.

In Caperton v. A.T. Massey Coal Co., Inc., __ U.S. __, 129 S.CT. 2252 (2009), an individual whose

company had interests in litigation pending before the West Virginia Supreme Court made multi-

million dollar donations to a political organization knows as "And for the Sake of the Kids." The

organization used the funds to make independent expenditures to advance the campaign of a state

Supreme Court judicial candidate who was believed likely to support the donor's interest. Id. at

2257. The candidate won the election and subsequently provided the decisive vote in favor of the

donor's company. Id. The United States Supreme Court found that the large contributions, made to

an independent expenditure committee, created such a substantial risk of actual bias that the judge

should have recused himself. Id. at 2263-65. The mere fact that contributions are made to a conduit,

rather than directly to a candidate, does not diminish the danger or the perception of corruption.

In this case, contribution limits established by the Election Law primarily apply to candidates

seeking office, and are established for the purposes of the Governmental interest in deterring
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corruption and the appearance of corruption by contributors. Hogan Aff. ¶ 25. These limits, closely

drawn by statute, are specifically determined based upon factors including the geographic scope and

size of the office/district for the candidate, as well as the number of voters registered or enrolled as

may be applicable. Id.; see N.Y. Election L. § 14-114 (setting forth limitations). Therefore, the

contribution limit for a candidate seeking a statewide office, such as governor, is significantly higher

than the contribution limit for an individual seeking a state assembly seat, which would be one of

150 office holders in that body, and the corresponding number of voters therein. Hogan Aff. ¶25; see

Election Law 14-114. Money, in the form of contributions, is influence. Hogan Aff. ¶ 25. As

demonstrated in the facts underlying Caperton, such influence has the very real potential to create

corruption. Accordingly, the contribution limits, which are based upon the office for which each

candidate is running, are closely drawn to a legitimate public interest.

3. There Has Been no Infringement of NYSUT's Right to Communicate its Political


Views to its Members

Plaintiffs allege that NYSUT may, in the future, be subjected to classification as a political

committee if it takes certain actions. Pls.’ Mem., 3-5. Specifically, plaintiffs challenge Board

Opinion #16 (1978) (Reilly Aff, Exh G) which provides that, if a union either circulates a special

edition of its own publication to endorse a candidate or pays for a separate literature which is

enclosed with its regularly scheduled union publication -- and the candidate or the candidate's

committee fails to report the union's expenditures as "contributions in kind," those expenditures

would not be considered to be contributions, and the union would be deemed by the Board to be a

political committee which is subject to certain filing requirements. Id. This, according to plaintiffs,

would infringe upon the right of NYSUT to communicate its political views to its members. Id. at

14-15.
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As stated in Section A, above, the speculative nature of this claim, namely, that NYSUT

would suffer an injury only if an as of yet unidentified third party, i.e. a candidate, took certain

actions, makes injunctive relief inappropriate. This claim, in any event, vastly overstates the

purported restriction on NYSUT’s ability to communicate with its members.

Apart from the fact that NYSUT may communicate with its members in a variety of ways

without being deemed a political committee (see Reilly Aff, Exh G), there is no allegation that

defendants are prohibiting NYSUT from speaking. The sole consequence of being deemed a

political committee as a result of a candidate's characterization of their communication would be that

NYSUT would then be obligated to comply with the filing and reporting requirements of Article 14

of the Election Law. These requirements, which simply involve reporting the candidates supported

or opposed by the committee, and the committee's authorization status, impose no prohibition on

speech and only a minimal administrative burden that does not run afoul of the First Amendment.

Because “disclosure requirements … do not prevent anyone from speaking,” McConnell v.

FEC, 540 U.S. 93, 201 (2003) (citation and brackets omitted), the strict scrutiny standard does not

apply to them. Instead, a court analyzes whether the disclosure requirement at issue bears a

“substantial relation” to a “sufficiently important” governmental interest. Buckley v. Valeo, 424

U.S. 1, 64, 66, 75 (1976) (citation omitted). Thus, this Court should apply an intermediate standard

of scrutiny.

The Buckley Court listed three important interests such reporting and disclosure

requirements serve. First, they inform the electorate “as to where political campaign money comes

from,” thereby aiding voters “in evaluating those who seek federal office” by placing “each

candidate in the political spectrum” and alerting voters “to the interests to which a candidate is most

likely to be responsive.” Id. at 66-67. Second, the requirements “deter actual corruption and avoid
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the appearance of corruption by exposing large contributions and expenditures to the light of

publicity.” Id. at 67 (footnote omitted). Third, “recordkeeping, reporting, and disclosure

requirements are an essential means of gathering the data necessary to detect violations” of the Act.

Id. at 67-68. Those same interests are served by the reporting and disclosure requirements

challenged herein. Hogan Aff., ¶¶3, 8-10, 67.

The governmental interests identified in Buckley support upholding the requirements

challenged herein to political committees that make only independent expenditures. As the Court

observed in upholding FECA’s independent expenditure reporting requirements for individuals and

groups other than political committees, “the informational interest can be as strong as it is in

coordinated spending, for disclosure helps voters to define more of the candidates’ constituencies.”

Buckley, 424 U.S. at 81; see also McConnell, 540 U.S. at 196-97 (upholding disclosure

requirements for “electioneering communications” against a facial challenge because, among other

reasons, “citizens seeking to make informed choices in the political marketplace” have “First

Amendment interests” in learning how electoral advocacy is funded).

The Board's political committee disclosure requirements will deter corruption and the

appearance of corruption by large contributors to VOTE/COPE. Hogan Aff., ¶ 67. The public and

the press will know who gives large contributions to VOTE/COPE, including for its administrative

expenses, and they can keep watch on candidates and officeholders to see if they change their policy

positions or take legislative actions beneficial to the large contributors’ interests. Id.

In addition, the Board's recordkeeping, reporting, and disclosure requirements for political

committees will help the Board and the public “gather[ ] the data necessary to detect violations” of

the state Election Law. Buckley, 424 U.S. at 68; Hogan Aff., ¶ 67.

The sole case on which plaintiffs rely in support of this claim, Ariz. Right to Life PAC v.
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Bayless, 320 F.3d 1002, 1007 (9th Cir. 2003), is clearly inapposite. At issue in Bayless was an

Arizona statute which required political committees preparing to make an expenditure supporting or

opposing a candidate to “send by certified mail a copy of the campaign literature or advertisement to

each candidate named or otherwise referred to in the literature or advertisement twenty-four hours

before” mailing, publishing, or broadcasting the advertisement. Id. at 1005. No such “waiting

period” is challenged here. Bayless is, therefore, clearly distinguishable factually.

Nor is the proposition for which plaintiffs cite Bayless, namely that restrictions on

“spontaneous political expression” unconstitutionally burden the speaker’s free speech rights,

implicated by these facts. NYSUT apparently objects to being unable to pay to mail to its members

a newsletter or other written endorsement of a candidate, other than its regularly scheduled

newsletter, without the possibility of being deemed a political committee. Pls.’ Mem., 3-5.

Preparation of such a publication, which presumably would require drafting of endorsement text,

making formatting and layout selections, et cetera, can hardly be characterized as “spontaneous”

speech. Clearly more spontaneous acts, including urging union members at a union meeting to

support or oppose a candidate and endorsing a candidate through statements to the general public or

the media are expressly permitted by the Board. See Reilly Aff., Exh. G.

For all of these reasons, there has been no infringement of NYSUT's right to communicate its

political views to its members.

4. Election Law section 14-118 Does Not Act as an Unconstitutional Prior Restraint on
Speech

Finally, plaintiffs allege that Election Law section 14-118, by requiring unauthorized

committees to identify the candidates they intend to support or oppose when they register with the

Board of Elections, acts as an unconstitutional prior restraint on speech. Pls.’ Mem., 5-7. Because

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plaintiffs clearly misconstrue the statute, their claim in this regard lacks merit and they cannot

establish a likelihood of success with respect to it.

“A ‘prior restraint’ on speech is a law, regulation or judicial order that suppresses speech - or

provides for its suppression at the discretion of government officials - on the basis of the speech's

content and in advance of its actual expression.” United States v. Quattrone, 402 F.3d 304, 309 (2d

Cir.2005). Section 14-118, which relates primarily to the designation of a treasurer and depository

for political committees, does require that a statement filed with the Board of Elections identify “the

candidate or candidates or ballot proposal or proposals the success or defeat of which the committee

is to aid or take part.” N.Y. Elec. Law § 14-118(1) (2010). The same provision, however, also

specifically provides that “[a]ny change in the information required in any statement shall be

reported, in an amended statement filed in the same manner and in the same office as an original

statement filed under this section, within two days after it occurs. Id. (emphasis added).

The record before the Court clearly establishes that should a committee subject to the

requirements of section 14-118, which VOTE/COPE (and NYSUT, for that matter) is not, wish to

speak out in favor of or opposition to a candidate not currently listed on their registration form, they

clearly could do so the instant they wished to and would then simply be required to amend their

registration certificate within two days. Hogan Aff., ¶¶63-64. By the plain language of the statute it

does not prohibit or restrain plaintiffs from speaking in any way.

Reporting and disclosure requirements such as those challenged here have been upheld by

the Supreme Court. See Buckley, 424 U.S. at 60-84 (upholding the Federal Election Campaign Act

's reporting and disclosure requirements). And as outlined above, the burden imposed by disclosure

and reporting requirements such as those at issue here, which currently do not even apply to

plaintiffs, is not a direct burden on the ability to speak, and in any event imposes only the smallest of
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administrative burdens that is far outweighed by the legitimate interests behind those requirements.

The fact that VOTE/COPE is a registered political committee spending money in elections supports

the conclusion that its major purpose is campaign activity. Hogan Aff., ¶61. Such an organization

"devoted almost entirely to campaign spending could not plead that the administrative burdens

associated with such spending were unconstitutional as applied to it.” Akins v. FEC, 101 F.3d 731,

742 (D.C. Cir. 1996) (en banc), vacated on other grounds, 524 U.S. 11 (1998). Yet that is precisely

what plaintiffs have pleaded here.

C. The Requested Injunctive Relief Would Substantially Harm the Defendants and the
Public

“In exercising their sound discretion, courts of equity should pay particular regard for the

public consequences in employing the extraordinary remedy of injunction.” Winter, 129 S. Ct. at

376-77 (internal quotation marks and citation omitted). There can be no question that

the government has a significant interest in safeguarding the political process by


deterring actual corruption and avoiding the appearance of corruption by exposing large
contributions and expenditures to the light of publicity, by providing the electorate with
information to aid the voters in evaluating those who seek federal office, and by
gathering the data necessary to detect violations of the federal campaign finance laws.

Koerber v. Federal Election Com'n, 583 F.Supp.2d 740, 746 (E.D.N.C. 2008) (citing Buckley, 424

U.S. at 66-68) (quotations and alterations in original omitted).

Permitting plaintiffs to evade the challenged campaign finance rule imposed by the Board in

enforcing provisions of the state Election Law would substantially injure the defendants and the

public. Both have a strong interest in enforcing the State's campaign finance laws, thereby

preventing corruption and the appearance of corruption.

Injunctive relief of the sort now sought also poses a serious risk that the upcoming elections,

especially the primary elections which are just a few weeks away, will not be contested on a level

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playing field. Hogan Aff., ¶¶ 45-49. New York’s Election Law was enacted “to insure fair

elections.” Lauer v. Board of Elections, 262 N.Y. 416, 419 (1933). The Board of Elections has been

statutorily entrusted with the duty to administer the State’s elections and campaign finance practices.

N.Y. Elec. Law § 3-102 (2007). This obligation would be jeopardized if the Court were to enjoin

enforcement of such critical legislative directive so close to the election. Hogan Aff., ¶¶ 45-49.

The Supreme Court has recognized that it is entirely reasonable to require that everyone

“follow the same set of rules designed to protect the integrity of the electoral process.” McConnell

v. Federal Election Com'n, 540 U.S. 93, 159 (2003). The injunction plaintiffs seek threatens this

basic principle. The statutory regime plaintiffs now seek to modify has been in place for some time.

All groups with an interest in influencing elections have abided by it and, more importantly, have

structured their advocacy strategies in reliance upon it. Enjoining one or more of the provisions now

being challenged poses an undue risk that plaintiffs may be in an unduly advantageous position in

the upcoming elections. Plaintiffs could, for example, be prepared with advertising or advocacy

material in advance of the Court’s ruling and would be free to immediately speak if an injunction

were issued. Other groups, who might have interests contrary to plaintiffs, but are perhaps unaware

of even the pendency of this action3 could, therefore, be caught unaware of a sudden change in the

rules. It simply would be unfair to change the rules at this late date.

It is highly significant here that an injunction would substantially alter the status quo with

respect to electioneering in New York. Once plaintiffs or any of the myriad of similarly situated

interest groups are permitted to spend money, through independent expenditures or previously

3 It should go without saying that New York is a large and diverse state with many different interest
groups. It is hardly a stretch to assume that many interest groups who might wish to speak in the
upcoming elections are completely unaware of this litigation.

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impermissible contributions, that obviously cannot be undone. Such expenditures could

significantly4 affect the elections in a year when all state-wide offices are up for election as well as

the entire State Legislature. Hogan Aff., ¶ 35. Permitting such an influx of new money into the

election without allowing the Board of Elections to address potential gaps in the statutory and

regulatory regime for regulating campaign finances poses a significant threat to the underlying goal

of guaranteeing fair elections. Hogan Aff., ¶ 49.

The claims raised here are in some respects quite novel. Injunctive relief that so significantly

alters the status quo should not be granted before the Court has had a complete opportunity to

address the claims and defenses at issue. Money spent cannot be recouped and its impact on voters

obviously cannot be undone. “Though federal courts possess great authority, they lack the power,

once a bell has been rung, to unring it.” Presidential Gardens Assocs. v. United States, 175 F.3d 132,

143 (2d Cir. 1999) (quoting Knaust v. City of Kingston, N.Y., 157 F.3d 86, 88 (2d Cir. 1998)).

Finally, there is a significant risk of harm to the State here from issuance of an injunction.

As outlined above, a temporary lifting of the provisions of the Election Law and the Board's policies

challenged herein during the 2010 election cycle, even if limited to plaintiffs, would undermine the

public’s confidence in the integrity of the State campaign financing system. Moreover, New York

has an intricate and detailed campaign finance regulatory structure in place. Sudden and significant

changes like those that would result from the requested injunction pose a very real risk that there

may be gaps in the system that would render the Board of Elections unable to fulfill its statutory

obligation to monitor the upcoming elections. At the very least, these changes would entail

4 According to VOTE/COPE's most recent campaign financial disclosure report on file with the
Board, VOTE/COPE reported an available cash balance of $7,738,880.34. Hogan Aff., ¶ 33.

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additional reporting requirements and would require software changes to the electronic financial

disclosure system maintained by the Board. Hogan Aff., ¶¶ 39-42, 46. These changes would take

time and implementing them in the midst of an election cycle would be enormously difficult. Id. at

¶¶ 39-42, 46.

Conclusion

For the reasons set forth above, plaintiffs’ motion for injunctive relief should be denied.

Dated: Albany, New York


August 13, 2010
ANDREW M. CUOMO
Attorney General of the State of New York
Attorney for Defendants
The Capitol
Albany, New York 12224-0341

By: s/Krista A. Rock


Krista A. Rock, Bar Roll No. 508207
s/Kelly Munkwitz
Kelly Munkwitz, Bar Roll No. 509910
Assistant Attorney Generals, of Counsel
Telephone: (518) 474-3602
Fax: (518) 473-1572 (Not for service of papers.)
Email: Krista.Rock@ag.ny.gov
Email: Kelly.Munkwitz@ag.ny.gov

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