Again we emphasize that the recent corruption scandals in Connecticut in no way
15
implicated lobbyists. See Green Party I, 590 F. Supp. 2d at 321.
The CFRA’s ban on contributions by a lobbyist’s spouse or dependent children, a measure
16
intended to prevent lobbyists from circumventing the contribution ban, is likewise not closely drawn
to achieve the state’s anticorruption interest. On this record, therefore, it too violates the First
Amendment.
27
favoritism and influence are “[un]avoidable in representative politics.” Id. at 910 (quotation marks
omitted). Influence and access, moreover, are not sinister in nature. Some influence, such as wise
counsel from a trusted advisor—even if that advisor is a lobbyist—can enhance the effectiveness of
our representative government.
Accordingly, there is insufficient evidence to demonstrate that all lobbyist contributions give
rise to an appearance of corruption, and the evidence demonstrating that lobbyist contributions give
rise to an appearance of “influence,” see, e.g., Meadow Decl. ¶ 26, has no bearing on whether the
CFRA’s ban on lobbyist contributions is closely drawn to the state’s anticorruption interest. We
conclude, as a result, that on this record, a limit on lobbyist contributions would adequately address
the state’s interest in combating corruption and the appearance of corruption on the part of
lobbyists. The CFRA’s ban on lobbyist contributions, therefore, is not closely drawn to achieve the
15
state’s anticorruption interest. Thus, we hold that the CFRA’s ban on lobbyist contributions, Conn.
Gen. Stat. § 9-610(g), violates the First Amendment.
16
II.
The CFRA’s Solicitation Bans
As set forth above, the CFRA prohibits contractors and lobbyists from “solicit[ing]”
contributions “on behalf of” candidates for state office. See Conn. Gen. Stat. §§ 9-610(h),
9-612(g)(2). That prohibition applies to current state contractors, prospective state contractors, and
the principals of current and prospective state contractors, as well as to the spouses and dependent
children of covered lobbyists and contractors. See id. §§ 9-601(24), 9-610(h), 9-612(g)(1)(F), (2).
We recognize that McConnell declined an invitation to apply strict scrutiny to certain
17
provisions of federal law that banned the solicitation of contributions. See 540 U.S. at 138-40. As
the District Court in this case concisely explained, however, the McConnell solicitation provisions
largely “barred the solicitation of contributions that the potential donor would have been prohibited
from making in the first place.” Green Party I, 590 F. Supp. 2d at 339 (citing McConnell, 540 U.S. at
138). Strict scrutiny certainly does not apply to laws prohibiting the solicitation of illegal
contributions, just as strict scrutiny does not apply to laws prohibiting the solicitation of other
28
Unlike laws limiting contributions, which present “marginal speech restrictions” that “lie
closer to the edges than to the core of political expression,” Beaumont, 539 U.S. at 161 (quotation
marks omitted), a limit on the solicitation of otherwise permissible contributions prohibits exactly
the kind of expressive activity that lies at the First Amendment’s “core.” That is because the
solicitation of contributions involves speech—to solicit contributions on behalf of a candidate is to
make a statement: “You should support this candidate, not only at the polls but with a financial
contribution.” Whatever may be said about whether money is speech, see, e.g., Davis v. Fed. Election
Comm’n, 128 S. Ct. 2759, 2778-79 & n.3 (2008) (Stevens, J., dissenting in part), speech is speech, even
if it is speech about money, see, e.g., Bates v. State Bar of Ariz., 433 U.S. 350, 363 (1977) (“[O]ur cases
long have protected speech even though it is . . . in the form of a solicitation to pay or contribute
money . . . .”). Speech “‘uttered during a campaign for political office,’” moreover, requires the
“‘fullest and most urgent application’” of the protections set forth in the First Amendment. Citizens
United, 130 S. Ct. at 898 (quoting Eu v. S.F. County Democratic Cent. Comm., 489 U.S. 214, 223 (1989))
(quotation marks omitted).
Thus, the CFRA’s provisions banning the solicitation of contributions are “[l]aws that
burden political speech” and are, as a result, “‘subject to strict scrutiny,’ which requires the
Government to prove that the restriction ‘furthers a compelling interest and is narrowly tailored to
achieve that interest.’” Id. (quoting Fed. Election Comm’n v. Wis. Right to Life, Inc., 551 U.S. 449, 464
(2007) (Opinion of Roberts, C.J.)).
17
prohibited activity. See, e.g., United States v. Williams, 553 U.S. 285, 297 (2008) (“Offers to engage in
illegal transactions are categorically excluded from First Amendment protection.”).
Here, however, the CFRA’s solicitation bans prohibit contractors and lobbyists from
soliciting contributions that are otherwise legal for the contributors to make. Such provisions are
categorically different from most of the provisions at issue in McConnell, a point the state
“concede[d]” to the District Court. See Green Party I, 590 F. Supp. 2d at 339. Many of the
solicitation provisions in McConnell took the ordinary step of banning the solicitation of
contributions that were already prohibited; thus strict scrutiny was plainly inapplicable. The CFRA,
by contrast, takes the extraordinary step of banning the solicitation of contributions that are not
otherwise prohibited; that is a burden on political speech requiring the application of strict scrutiny.
In any event, to the extent that a few of the provisions in McConnell banned the solicitation
of otherwise legal contributions, McConnell is distinguishable: the extreme breadth of the CFRA’s
solicitation provisions—unlike the provisions in McConnell—justifies the application of strict scrutiny
because the CFRA’s provisions “burden[] speech in a way that a direct restriction on the
contribution itself would not.” McConnell, 540 U.S. at 139.
29
The state attempts to justify the CFRA’s solicitation bans, like the CFRA’s contribution
bans, as a means to combat corruption and the appearance of corruption. Although the
anticorruption interest has been held sufficiently important to justify restrictions on contributions,
see, e.g., McConnell, 540 U.S. at 143; Buckley, 424 U.S. at 25-26, in reviewing limits on campaign
expenditures under the strict scrutiny standard, the Supreme Court has consistently held that the
anticorruption interest is not a compelling government interest, see, e.g., Citizens United, 130 S. Ct. at
908-09 (striking down a restriction on corporate independent expenditures); Buckley, 424 U.S. at 45
(striking down a different restriction on independent expenditures).
As we observed above, moreover, “[w]hen Buckley identified a sufficiently important
governmental interest in preventing corruption or the appearance of corruption, that interest was
limited to quid pro quo corruption.” Citizens United, 130 S. Ct. at 909. It is easy to see how a “large
contribution[]” can be “given to secure a political quid pro quo from current and potential office
holders.” Buckley, 424 U.S. at 26. That is the “hallmark” of corruption: “dollars for political favors.”
Fed. Election Comm’n v. Nat’l Conservative Political Action Comm., 470 U.S. 480, 497 (1985). It is far more
difficult to see how an individual might secure a political favor by recommending that another person
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