Soundings

Bradley A. Smith
Stacking the Deck
Gotham’s campaign-finance law creates first- and second-class citizens.
Spring 2008

A constitutionally dubious campaign-finance law, passed last June by the New York City Council and signed by Mayor Michael Bloomberg, has some residents up in arms. It may still be true that if you can make it in New York, you can make it anywhere, as Frank Sinatra put it. But how you make it will now determine which of your political rights the city will protect.

Under the measure, every citizen who “does business with the city” saw the amount of money that he could contribute to a city candidate slashed by 90 percent. These New Yorkers can now contribute no more than $250 per election to city council candidates and $400 to mayoral candidates. All other residents, though, will still be able to give $2,750 to council candidates and $4,950 to mayoral ones. The law capaciously defines those who “do business with the city” to include lobbyists, developers, and businesses with city contracts worth more than $100,000, as well as people whose contact with the city consists of nothing more than ironing out pending land-use and zoning issues.

Attorney James Bopp, Jr. has filed a lawsuit in U.S. District Court on behalf of more than a dozen plaintiffs challenging the law’s constitutionality on First Amendment grounds. The measure, he argues, forces citizens to choose between their right to petition the government and their free-speech right to support their preferred political ideals, interests, and candidates through campaign contributions. Bopp, it’s worth noting, has won four campaign-finance cases before the United States Supreme Court.

The law is also unfair, since it exempts unions from the reduced contribution limits. As a result, Michele Russo, a plaintiff in the case who is the secretary for a registered lobbyist, now has fewer political rights than George Gresham, president of the powerful health-care workers’ union Local 1199. City council speaker Christine Quinn—who received more than $70,000 in union contributions—says the law is all about ensuring fairness. “The situation here is to require that everyone gets treated the same way,” she told the New York Times. “A union or a PAC can give one contribution, whatever the maximum is for the office in question. Someone who did business with the City of New York prior to this could have every person in the business give a contribution of the maximum level allowed to that office. So I think this in fact much more levels the playing field.” Of course, individual members of unions, like employees of firms and corporations, are also free to give to candidates, a fact that Quinn conveniently ignores. In Bopp’s view, the law’s failure to apply funding restrictions to unions (and neighborhood associations) proves that it was enacted for “partisan political effect.” What’s more, like all campaign-finance laws, it favors incumbents, who already have visibility and name recognition.

By imposing regulations that give some citizens greater political rights than others, the new law transforms city government into a kind of political sound engineer—turning the volume of certain speakers up and of others down, according to how one chooses to make a living and where politicians’ interests lie. Such a role for government is wholly foreign to the First Amendment.

Bradley A. Smith is a former chairman of the Federal Election Commission.

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