Last week, the Pennsylvania Supreme Court struck down a state law that banned essentially all political contributions from anyone with any link to the gaming industry.
Specifically, Pennsylvania’s High Court ruled 5-1 that “a wholesale banning of political contributions” — even when those contributions are given by those who are directly or indirectly connected to gambling — is “impermissible when read in light of the legislative purpose of addressing the impact of large contributions on public confidence and trust.”
So, what fix do a couple of state legislators have in mind now? Well, according to Philadelphia Inquirer, State Representatives Curt Schroder (R-Chester) and Michael O’Brien (D-Philadelphia) said Monday that “they believe they have found a way to reinstate the restriction and protect it from future constitutional challenges … merely by putting a line through just one word: ‘large
.'”
You see, according to these publicly elected representatives — and self-appointed constitutional scholars — the only problem with banning political contributions made by anyone who has even a tangential interest in a gaming company was that law mistakenly stated its purpose too narrowly: “to prevent the actual or appearance of corruption that may result from large campaign contributions.” (emphasis added)
In other words, if the legislature had just omitted that modifier “large,” then everything would have been perfectly constitutional. Or, taking the case just decided as an example, this pair of legislators believes that, if that pesky word “large” wasn’t there, then they could wholly “prohibit[ ]” a citizen — even if he happens to hold less than a 10% indirect ownership interest in a company that plans to open a casino — “from contributing any money or in-kind contribution to a candidate …, or to any political party … or other political committee … or to any group, committee or association organized in support of a candidate, political party … or other political committee,” as the law just struck down did.
Paraphrasing State Representative Schroder’s thoughts from a post-decision news conference, the Inquirer explained that he “reasoned” if the legislature “rewr[o]te the measure minus the word ‘large,'” then “the ban should pass constitutional muster.” But that “reason[ing]” — if you can call it that — is just as ridiculous as it sounds.
While the Pennsylvania Supreme Court did note that the “General Assembly plainly stated that its intention … was to prevent the corrupting influence or appearance resulting from large campaign contributions, not all campaign contributions,” the Court held that the law was “unconstitutional” because “[b]anning all contributions is not a narrowly drawn means of furthering a policy of negating the corrupting effect and appearance of large contributions.” (emphasis in original)
Indeed, the Court provided the most obvious example of a more narrow means, explaining that a “statute that limited the size of contributions, rather than absolutely prohibiting any contributions, would be more narrowly drawn to accomplish the stated [anti-corruption] goal,” while not “entirely depriv[ing] an individual involved in the gaming industry of this form of [protected] political association and expression.”
Here at CCP would go even a step further. Why does Pennsylvania need to discriminate against some of its citizens — who, in this case, happen to be directly or indirectly connected to gambling — by limiting their political speech and association rights at all, while leaving other citizens and their rights fully intact?
Other Pennsylvania citizens face no limits on the amounts they can contribute to the candidates, political parties, and political committees of their choice. Instead, the state has chosen reporting and disclosure as its means of deterring corruption and its appearance, with the public and the press being provided a means to keep a close eye on their elected officials, and how their campaigns are funded, to ensure no contributor is anteing up a quid for a reciprocal payoff in a government quo.
The answer, of course, is that there is no good reason such an electoral reporting and disclosure regime can’t be just as effective with the gaming industry as it is with any other interest having business before or regulated by the state. It’s just that — as is the case for lobbyists and government contractors elsewhere — the popularity-minded-but-less-than-fair legislators of Pennsylvania want to, and are able to, restrict the free speech and association rights of their citizens with any ties to gaming because they aren’t so sympathetic as, say, nurses or child-care providers.
Of course, if political speech and association was to be rationed out based on popularity, then politicians might have quite a bit to worry about themselves. That’s something we hope Representatives Schroder and O’Brien think about before rushing back to session to try to reinstate a campaign contribution ban the Pennsylvania Supreme Court has already struck down.
Quite simply, gaming the legislation by deleting the word “large” won’t solve the constitutional problem.
[Interesting side note: The Pennsylvania Supreme Court struck down the gaming contribution ban not based on the First Amendment of the U.S. Constitution, but, instead, based on the free speech and association protections found in the Commonwealth of Pennsylvania’s Constitution. Indeed, the decision stated explicitly that “[t]his Court has found that Article I, Section 7 [of the Pennsylvania Constitution, which guarantees Pennsylvania’s free speech and association protections,] provides broader protections of expression than the related First Amendment guarantee in a number of different contexts.” (emphasis added)]
