The Case Against New York City’s Pay-to-Play Reforms

Earlier this week, the long expected challenge to New York City’s recent campaign finance law amendments was filed in the U.S. District Court for the Southern District of New York. Ognibene v. Schwarz includes free speech, equal protection and Voting Rights Act challenges to the “doing business” contribution limits and other elements of NYC's campaign finance and lobbying laws. The plaintiffs include candidates, political parties, potential contributors, business owners, lobbyists, limited liability companies, and voters. One count of the complaint maintains that the doing business contribution limits unconstitutionally burden the First Amendment rights of the family members and employees of lobbyists. Is this true? In brief (and without the citations), the doing business limits apply to every “lobbyist,” as that term is defined in the NYC lobbying law: “every person or organization retained, employed or designated by any client to engage in lobbying.” But neither the lobbying law nor the campaign finance law extend these contribution limits to contributions by the spouse, domestic partner or unemancipated children of the lobbyist. Nor do these contribution limits cover any of the lobbyist’s employees, or their spouses, domestic partners or children. These persons may be treated as lobbyists under the Campaign Finance Act, but only for the purpose of defining their political contributions as not matchable with public funds – which is a separate cause for complaint in the lawsuit. Rather than limiting family member contributions, the law directs the Mayor, City Council, and Campaign Finance Board to form a task force to study the feasibility of subjecting spouses, domestic partners and unemancipated children to the doing business contribution limits. So right now it is a bit premature for the complaint to maintain that the doing business contribution limits reach “even the speech and associational rights of such people as far removed from business dealings with the City as a secretary of a lobbyist, the spouse of an employee of a lobbyist, and the unemancipated child of the spouse of an employee of a registered lobbyist.” While other elements of the law arguably have this effect, the current law's contribution limits simply do not.