A quick read of today’s coverage of the New York union expenditure decision boggles the mind. Does New York really prevent PACs from making expenditures? How could that be? Or as my kids say, WTF (“why the face?”)?
The judge who rejected a New York union’s motion for a temporary restraining order and preliminary injunction yesterday issued no written opinion, which doesn’t help alleviate the confusion. No, for an explanation of what did—and didn’t—happen, you need to dig into New York’s state campaign finance laws more deeply. And that’s a path fraught with peril. So, I did it, and now you don’t have to!
The deal is this: New York law offers activists a vast and tangled array of alternatives in the PAC world. People, like yours truly, who think of a “PAC” as more-or-less synonymous with a “political committee” can’t depend on those instincts when talking about New York.
In the case at hand, titled Voice of Teacher Education/COPE v. New Your State Board of Elections (1:10-CV-00961 for you PACER types) the plaintiff is a PAC—but in New York that means it is a committee formed specifically to make contributions. (The contribution limit in new York is $6,000 for state senate primary, and $9,500 for a state senate general election). If the union affiliated with VOTE/COPE wants to make expenditures, it could form an “unauthorized” committee, but the donations into this committee are limited to $6,000. Also, when this committee is organized, it needs to state who (or what) it intends to support or oppose. If it changes its mind, it then needs to amend this statement within two days (I think).
So, the State is making much of the fact that the entity that is designed under state law to facilitate contributions is the wrong entity to be complaining about expenditure rights and restrictions. To thicken the plot just a little—what would happen if the union decided to make an independent expenditure itself—Citizens United style? It is deemed a committee! And has to file an bunch of forms, disclose a bunch of stuff, (observe limits, I would assume) all of which the New York Attorney General says is nifty and constitutional.
The court rejected all four of VOTE/COPE’s causes of action, concluding (I think—there’s no opinion, remember) that this plaintiff could not meet the high standards set for a temporary restraining order and preliminary injunction, given its status as a contribution-making machine, and the hypothetical case the union might make that it shouldn’t be required to form another committee to make expenditures (including internal communications!) was too attenuated for extraordinary relief.
In short, this case presents Citizens United and SpeechNow.org type challenges, but the peculiar character of the party may cloud those issues for the courts that consider this case going forward. Would it have been a tidier case if brought by the union itself? Is the New York law byzantine, crazy, and lacking in justification? I think so.