UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF
NEW
YORK
-------------------------------------------------------------x
CITIZENS UNION OF THE CITY OF
N W
YORK, et al., Plaintiffs,
-
v
-
THE GOVERNOR OF
TH
STATE OF
N W
YORK, in his official capacity, et al., Defendants.
-------------------------------------------------------------x
AMERICAN CIVIL LIBERTIES UNION FOUNDATION, INC.,
et
al., Plaintiffs,
-
v
-
SETH
H
AGATA,
in
his official capacity as Executive Director
of
the Joint Commission on Public Ethics, et al., Defendants.
-------------------------------------------------------------x
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1
USDCSDNY
DOCUM ENT
ELECTRONICALLY FILED DOC :
~... . -
DATE FILED:
I
(\\l\7
DECISION
OR ER
16
Civ. 9592 (RMB)
16
Civ. 9854 (RMB) Having reviewed the record herein, including without limitation,
(i)
Citizens Union
of
the City
of
New York and Citizens Union Foundation, Inc.
of
the City
of
New
York's complaint seeking preliminary and permanent injunctions and a declaration that New York Executive Law Sections 172-e and 172-f are unconstitutional as overbroad and a burden upon protected speech (Comp ., filed Dec. 12, 2016,
i i
124, 129);
(ii)
American Civil Liberties Union Foundation, Inc., New York Civil Liberties Union Foundation, and New York Civil Liberties Union's complaint also seeking preliminary and permanent injunctions and a declaration that Sections 172-e and 172-f are unconstitutional. (Comp ., filed Dec. 21, 2016,
i
76.) "[T]he compelled disclosure rules
1
Case 1:16-cv-09592-RMB Document 34 Filed 01/11/17 Page 1 of 8
[required under those Sections] infringe upon the rights
of
association and speech
of
Plaintiffs' members and supporters (id.) and breach the associational privacy
of
supporters
[of
501
(c)(3) and 50l(c)(4) organizations] by publicly disclosing their identities (ACLU Letter, dated Dec. 23, 2016, at 3); (iii) the Court's Order, dated December 26, 2016, among other things, directing Plaintiffs to describe why and how Sections 172-e and 172-fwere enacted and submit a list
of
citations to all jurisdictions which have enacted the same or substantially similar legislation and any related litigation, and directing Defendants New York Governor Andrew
M.
Cuomo, New York Attorney General Eric Schneiderman, and the members
of
the New York Joint Commission on Public Ethics ( JCOPE ) each to submit a written explanation
of
why and how Sections 172-e and 172-fwere enacted, the written legislative and executive branch history
of
these two sections, and
a
list
of
all jurisdictions which have enacted the same or substantially similar legislation and any related litigation (Order, dated Dec. 26, 2016, at 2);
1
(iv) the Attorney General Office's stipulations with Citizens Union, dated December 27, 2016, and ACLU Foundation, dated January
3
2017, respectively ( Stipulations ), in which the Attorney General has agreed not to take any action to enforce, or direct the enforcement of, Sections 172-e and 172-f in any respect pending this Court's review and determination
of
the Plaintiffs' pending preliminary injunction application(s) (Stipulations at 2); (v) Citizens Union's letter, stating, among other things, Sections 172-e and 172-f are unlike other states'
1
On January
4
2017, the Court so ordered a stipulation between Plaintiffs and the members
of
JCOPE stating that [t]he actions are hereby voluntarily dismissed without prejudice as against the JCOPE Defendants, [t]he JCOPE Defendants shall not take any action to enforce, or direct the enforcement of, [Sections 172-e and 172-fJ in any respect during the pendency
of
these actions, and [t]he JCOPE Defendants will be bound, in their official capacity, by any Order
of
the Court in these actions enjoining, temporarily or permanently, any portion
of
[Sections 172-e and 172-fJ. (Stipulation and Order, filed Jan. 4, 2017, at 2.) 2
Case 1:16-cv-09592-RMB Document 34 Filed 01/11/17 Page 2 of 8
disclosure provisions because they are not linked with electioneering conduct (Letter to Court, dated Dec. 30, 2016, at 1, 3); (vi)
ACLU
Foundation's letter, stating,
among
other things, Plaintiffs are not aware
of
any
other jurisdiction that requires a 501(c)(4) entity to publicly disclose donor information and to submit descriptions
of
its communications based solely
on
the fact that it expends funds to engage in speech directed to the general public about a broad range
of
political and policy-related issues, and Plaintiffs are
not
aware
of
any other jurisdiction that requires a 501(c)(3) to publicly disclose its donors based
on
the fact that the
50l(c)(3)
makes a general support contribution to a 501(c)(4) that files lobbying disclosures (Letter to Court, dated Dec. 30, 2017, at 5);
vii)
the Governor's
counsel's
letter, stating,
among
other things, Sections 172-e and
172-f
were adopted after a great deal
of
negotiation between representatives
of
the Governor and
of
the State Assembly and Senate, and that both Sections are consistent with the First Amendment in that
Section
172-e addresses a specific issue
of
nondisclosure brought about by a loophole in the law, and Section 172-f[]
was
intended to shed sunlight
on
dark money in politics (Letter
to
Court, dated Dec. 30, 2016, at 2-3);
viii)
the Attorney General's counsel's two letters (both dated December 30, 2016), stating,
among other
things, he is unaware
of
any other jurisdiction that has enacted legislation similar to [Sections 172-e and 172-f] (Letter to Court, dated Dec. 30, 2016, at 2), and
the
availability
of
an
exemption from disclosure mitigates against a finding
of
irreparable
harm
(Letter, dated Dec. 30, 2016, at 2).
2
Counsel also argues that Sections 172-e and
172-f bear
a substantial relation to the
State's
2
Sections 172-e and
172-f
contain so-called exemption provisions as follows:
the
attorney general,
or
his
or
her designee,
may
determine that disclosure
of
donations to the covered entity shall not be made public if, based
upon
a review
of
the relevant facts presented by the covered entity, such disclosure
may
cause harm, threats, harassment, or reprisals to the source
of
the donation
or
to individuals
or
property affiliated
with
the source
of
the donation.
The
covered 3
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