THERE are a few things central to the democratic process in the United States. One is that we maintain an open government, with the public aware of not just who is wielding influence but how that influence is used. Another is that citizens have the right to participate in the electoral process by financially and voluntarily supporting the candidates of their choice. It’s a basic who, how and why of democracy.
The new bill passed by the City Council, Intro No. 586-A, is designed to severely limit the participation for a vast number of citizens by restricting financial contributions for anyone with business before the city.
Fundamentally, financial support of candidates for public office represents political expression at the core of our democratic electoral process. It is protected “speech” under the First Amendment.
Although no doubt well intentioned, the council’s far-reaching campaign-finance reform will deprive a significant number of New Yorkers, plus their business associates and even family members, of the right to make even modest campaign donations to candidates of their choice for mayor, comptroller, public advocate, borough president and City Council.
The list of those to be restricted includes anyone with business before the city or paid to represent those with business before the city. Contractors, builders, attorneys, accountants, architects with applications before the City Planning Commission, non-profit service providers who represent their interests before the council, even doctors who give expert testimony before the council on (say) smoking or trans fats – all fall under the ban. These retained professionals will henceforth have greatly limited rights in the electoral process.
And the ban doesn’t stop there – the restrictions extend to these New Yorkers’ spouses, partners and children. All have been transformed into second-class citizens in the electoral process.
A New Yorker with no business before the city can contribute more than 10 times what a “lobbyist” or anyone “doing business” with the city may give under this legislation. And much of that New Yorker’s contribution will be matched with public funds, at a ratio of six-to-one.
The Supreme Court has held that legislative restrictions on political advocacy are “wholly at odds with the guarantees of the First Amendment.” Petitioning the government on behalf of others embodies the political freedoms of speech and association. The extent to which the City Council’s bill burdens the First Amendment rights of “lobbyists” will not survive legal challenge.
The law is clear that if the same governmental goal can be achieved by two different methods – one that substantially burdens First Amendment rights, and one that doesn’t – then the latter must be used. This measure’s official goal is to avoid political corruption or the appearance of impropriety – and there are alternative ways to achieve that.
Sid Davidoff is a senior partner at Davidoff, Malito & Hutcher and a former administrative assistant to the New York City mayor.