QUESTION
What are the constitutional and administrative concerns raised regarding Intro 742's prohibition on lobbying activities by fundraisers and political consultants?
1:59:40
·
6 min
Paul Ryan explains that Intro 742's prohibition on lobbying activities by individuals engaged in fundraising or political consulting could face strict judicial scrutiny, making it harder to defend constitutionally since lobbying is considered core First Amendment activity.
- Existing campaign finance restrictions on lobbyists' contributions have faced more lenient intermediate scrutiny in court
- The law would require identifying the unknown universe of fundraisers and consultants to inform them, rather than focusing on the existing registered lobbyist database
- Ryan suggests prohibiting fundraising/consulting for officials they lobby would be constitutionally sounder and easier to administer
- He proposes using that as the framework and including a backstop prohibiting lobbying officials they raised funds for as an anti-circumvention measure
Lincoln Restler
1:59:40
And do you know it does the CFP proactively cross check with the information that is submitted in the lobby's reports, with respect to eligibility match.
Paul Ryan
1:59:51
Yeah.
1:59:51
We scrutinize those contributions quite carefully.
1:59:55
And, you know, I my excellent team at the campaign finance board has gone pretty deep into the trees, so to speak, on intro 742.
2:00:05
But I wanna make sure we don't miss the forest for the trees.
2:00:08
I have 2 pretty significant concerns Okay.
2:00:10
With the bill, 1 constitutional, 1 with respect to administration of the bill that I would love to speak to, if, please, if I may.
2:00:18
So as one of those concerns relates to the constitutionality of the law, The other relates to the administrability of the law.
2:00:27
And if addressed, I think, would likely address many of the more granular issues that my team flagged for me and perhaps would address some of the more pointed questions you might have for me today as clearly stated in title in the title of intro 742, this law would prohibit certain lobbying by individuals engaged in campaign fundraising or political consulting act activities.
2:00:50
This framework turns the conventional approach to regulating in this arena on its head.
2:00:55
The conventional approach is to regulate late particular activities of lobbyists.
2:01:00
The bill's framework prohibiting certain lobbying activities by those engaged in fundraising or consulting could have significant constitutional law and administrative implications.
2:01:08
So first, regarding the constitutional law implications, applying campaign finance restrictions on lobbyists is fairly common.
2:01:16
These restrictions have largely withstood constitutional scrutiny.
2:01:19
Here in New York City, for example, when lobbyists challenged the city's reduced political contribution limits for lobbyists and those doing business with the city, a federal district court, and the federal 2nd Circuit Court of Appeals upheld the city law against 1st and 14th Amendment challenge.
2:01:35
The case was under Menav Parks, which the 2nd Circuit decided in 2012, the Parks, who is the named defendant in this case, was the campaign finance board's chair at the time Joe of Pete Parks.
2:01:47
In considering the constitutionality of these lower contribution limits applicable to lobbyists, the courts applied a high intermediate scrutiny that has routinely applied to contribution limits across the board.
2:02:00
By contrast, to political contribution limits, many other types of laws that burden 1st amendment activities are subjected to so called strict scrutiny, and there's a saying on my first amendment litigators strict in theory, fatal in fact.
2:02:14
And that's because once a court decides to apply strict scrutiny, the challenge law rarely survives that scrutiny.
2:02:21
But in Augnebenet, the 2nd Circuit rejected the plaintiff's argument that strict scrutiny should apply, and instead, the court applied what it called the more lenient heightened intermediate scrutiny and found that the challenge law was constitutionally permissible because it was closely drawn to address the significant government governmental interest in reducing corruption or the appearance thereof.
2:02:42
My constitutional law concern with this proposed law is that rather than applying restrictions on fundraising by lobbyists, which would be subject to this more lenient heightened immediate scrutiny, this law would prohibit lobbying and would likely be subject to strict judicial scrutiny, making it much harder to defend in core work if it's challenged.
2:03:02
This differential treatment and constitutional law is because lobbying is considered core first amendment activity.
2:03:08
The first amendment explicitly protects the right to petition the government.
2:03:12
And by contrast, making political contributions has been deemed by courts to be a form of indirect speech.
2:03:18
Macon contribution is an expressive act, but it is not itself speech.
2:03:24
My second concern is an administrative one.
2:03:26
Their administrative rate of implications to this unconventional approach of prohibiting certain lobbyists activities of those who engage in fundraising or consulting rather than regulating the fundraising and consulting activities of lobbyists.
2:03:40
The law would mandate that the campaign finance board work with agency and the council to develop notices and advertisements intended to reach persons that engage in fundraising activities or political consulting activities that will inform some such persons of the probation set forth in this law.
2:03:57
The universe of people engaged in fundraising and consulting activities is a largely unknown universe.
2:04:03
To my knowledge, there is no database or a list of people engaged in fundraising or consulting.
2:04:08
By contrast, if the council worked take the more conventional approach applying fundraising and consulting restrictions on lobbyists, then educational efforts could focus on the known universe of registered lobbyists and that database obviously does exist.
2:04:22
Clark has been discussing it today and that Clark's office maintains it.
2:04:26
The new law starting point would be the known you diverse of lobbyists prohibiting them from fundraising or consulting for any office holder they have lobbied or reasonably expect to lobby, which is the thrust of the law even in its present form.
2:04:40
Such an approach would be on sound or constitutional footing and would also be easier to administer.
2:04:46
There are some foreseeable potential shortcomings in my suggested more conventional approach.
2:04:52
And if the starting point for this regulatory regime is read registered lobbyists, as I suggest it should be, there could be instances in which someone isn't a registered lobbyist at the time they do the fundraising or consulting.
2:05:03
And they later decide to lobby.
2:05:06
One policy solution would be to include the concept that's in the current bill as a backstop of sorts, prohibiting such an individual from lobbying the elected official they raised funds for or worked for, and admittedly this would raise the same institutional concerns like flagged moments ago.
2:05:22
However, the number of people falling into this category would be relatively small, I think.
2:05:28
And I believe that including this type of provision in the law is an anti circumvention backstop rather than as the entire legal framework of the law law is more constitutionally defensible.
2:05:39
Even if this backstop provision were challenged and held unconstitutional, the rest of the law would remain in effect, which would effectively regulate most of the people the law is intended to regulate, the professional political class.
2:05:52
I'm by contrast, in its current form, I think the entirety of the law may be vulnerable to constitutional challenge.
2:05:58
And if invalidated, the entire regulatory regime would be wiped out.
2:06:05
My team has flagged some other issues, more granular issues, but I really just wanted to get out there on the table this constitutional concern.
2:06:12
And I think this change would be significant in its impact, particularly in the ability to defend this law against constitutional challenge, but it would not substantially impact the purpose of this bill as it's been proposed.