Kennedy, et al. v. Gardner, et al. CV-98-608-M 09/30/99 P UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Richard E. Kennedy, Eric Carlson, and Lander Associates, Inc., Plaintiffs
v. Civil No. 98-608-M
William M. Gardner, New Hampshire Secretary of State; Philip T, McLaughlin, New Hampshire Attorney General; and Governor Jeanne Shaheen, Defendants
O R D E R
Plaintiffs, Richard Kennedy and two potential contributors
to his political campaign, bring this action pursuant to 42
U.S.C. § 1983, seeking declaratory and injunctive relief. They
claim that two separate campaign financing restrictions created
by New Hampshire Revised Statutes Annotated ("RSA") 664:4 violate
the First Amendment and are, therefore, unconstitutional.
Specifically, plaintiffs challenge the provisions of New
Hampshire's campaign finance law that: (1) prohibit all political
contributions by (or on behalf of) corporations; and (2) limit
political contributions from individuals and political committees
to $1,000, unless a candidate agrees to limit his or her campaign
expenditures in accordance with RSA 664:5-b, in which case such
contributions are permitted up to $5,000. Standard of Review
Summary judgment is appropriate when the record reveals "no
genuine issue as to any material fact and . . . the moving party
is entitled to a judgment as a matter of law." Fed. R. Civ. P.
56(c). When ruling upon a party's motion for summary judgment,
the court must "view the entire record in the light most
hospitable to the party opposing summary judgment, indulging all
reasonable inferences in that party's favor." Griqqs-Rvan v.
Smith, 904 F.2d 112, 115 (1st Cir. 1990).
The parties agree that there are no genuine issues of
material fact and their dispute - the constitutionality of the
challenged statutory provisions - may be resolved as a matter of
law .
Background
A. Historical Facts.
Kennedy, a citizen of New Hampshire, successfully campaigned
for election to the New Hampshire legislature in 1998. He did
not agree to limit his campaign expenditures or those
expenditures made on his behalf. Conseguently, individuals and
political committees wishing to contribute to Kennedy's campaign were prohibited by statute from giving more than $1,000.
However, other candidates, those who agreed to limit their
overall campaign expenditures in accordance with RSA 664:5-a,
were permitted by law to accept up to $5,000 from each individual
or political committee wanting to make a contribution.
During the course of Kennedy's campaign, plaintiff Eric
Carlson attempted to contribute $1,500. Realizing that such a
contribution would violate the $1,000 limit imposed by RSA 664:4
V, Kennedy placed Carlson's contribution into an escrow account
and did not spend those funds during his campaign.
New Hampshire's campaign finance law also provides that
corporations shall not make any campaign contributions to
candidates, political committees, or political parties. See RSA
664:4 I. Conseguently, when plaintiff Lander Associates
attempted to contribute $250 to Kennedy's campaign, Kennedy
realized that the contribution violated New Hampshire's campaign
finance law. As he had with the contribution made by Carlson,
Kennedy placed those funds into escrow and did not use them
during his campaign.
3 B. The Challenged Statutory Provision.
Plaintiffs claim that the provisions of New Hampshire's
campaign finance law imposing a $1,000 limit on individual
contributions to candidates who have refused to voluntarily limit
their overall campaign expenditures, while permitting individual
contributions of up to $5,000 to candidates who agree to such
spending limits, "unduly burdens and penalizes those candidates
who refuse to sacrifice their First Amendment right to unfettered
campaign expenditures." Plaintiffs' memorandum (document no. 9)
at 6. Plaintiffs also challenge those provisions of New
Hampshire's campaign finance law that preclude corporations from
contributing to candidates, political committees, and political
parties.
The challenged aspects of the statute provide as follows:
Prohibited Political Contributions. No contribution, whether tangible or intangible, shall be made to a candidate, a political committee, or political party, or in behalf of a candidate or political committee or political party, directly or indirectly, for the purpose of promoting the success or defeat of any candidate or political party at any state primary or general election:
I. By any corporation, or by any officer, director, executive, agent or employee acting in
4 behalf of such corporation, or by any organization representing or affiliated with one or more corporations or by any officer, director, executive, agent or employee acting in behalf of such organization. •k -k -k
V. By any person (1) if in excess of $5,000 in value, except for contributions made by a candidate in behalf of his own candidacy, or if in excess of $1,000 in value by any person or by any political committee to a candidate or a political committee working on behalf of a candidate who does not voluntarily agree to limit his campaign expenditures and those expenditures made on his behalf as provided in RSA 664:5-a . . . .
RSA 664:4 I and V (emphasis supplied).
As to the statute's apparent ban on all corporate political
contributions, plaintiffs say it unconstitutionally restricts
their freedom of speech guaranteed by the First Amendment.
Similarly, insofar as New Hampshire's statutory scheme creates a
so-called "cap gap" between maximum individual contributions that
can be made to candidates who agree to limit their campaign
spending (i.e., a $5,000 cap on contributions) and those which
can be made to candidates who have not agreed to such spending
limits (i.e., a $1000 cap), plaintiffs claim that it too
5 impermissibly restricts their protected "political speech," in
violation of the First Amendment.
Discussion
A. Limitations of Corporate Political Contributions.
Notwithstanding the seemingly unambiguous ban on all
corporate political contributions imposed by RSA 664:4 I,
defendants claim that the statute "has not been interpreted or
enforced by the defendants as prohibiting corporations from
establishing segregated funds to make political contributions
and, in fact, the defendants do not prohibit such contributions."
Defendants' memorandum at 10. To support their largely
undeveloped argument, defendants ambiguously point to RSA 664:3,
which governs the registration of "political committees." By
citing that statute, defendants seem to implicitly suggest that
corporations may make contributions to political candidates,
political committees, and political parties provided they
establish (or are themselves) registered "political committees."
That argument, however, is flawed.
6 Not only does RSA 664:4 I expressly prohibit corporations
from making any contributions to political candidates, it also
prohibits them from contributing, either directly or indirectly,
to political committees. So, while plaintiff Lander Associates
could, conceivably, have created and then registered a political
committee in the State of New Hampshire, it could not thereafter
contribute to that committee. See RSA 664:4 ("No contribution .
. . shall be made to a candidate, a political committee, or
political party . . . by any corporation.") (emphasis supplied).
Thus, notwithstanding defendants' implicit argument to the
contrary, there is no lawful means by which Lander Associates
could make any political contributions to candidates, political
parties, or political committees in New Hampshire.1
1 Of course, one might argue that Lander Associates could simply comply with the provisions of RSA 664:3, register itself as a political committee, pay the reguisite fees, and make the reguisite filings and disclosures concerning its officers. However, defendants have not advanced that argument and, therefore, they have not provided any justification for the imposition of such impairments upon the First Amendment rights of corporate entities such as Lander Associates (i.e., some evidence that the statute is "narrowly tailored" to advance a "compelling state interest").
Suffice it to say that defendants do not proffer such a strained construction and for good reason. That reading is inconsistent with the plain import and unambiguous language of RSA 664:4 I: no corporation shall, either directly or indirectly.
7 In an effort to save the challenged aspects of RSA 664:4 I,
defendants argue that, notwithstanding the unambiguous statutory
language to the contrary. New Hampshire's campaign finance law
does not prohibit corporations from making political
contributions, provided they are made from "segregated accounts"
rather than from general operating accounts. Plainly, defendants
hope to draw the challenged statutory provisions within the ambit
of holdings in cases such as Federal Election Com'n. v. Mass.
Citizens for Life, Inc., 479 U.S. 238 (1986) and Austin v.
Michigan Chamber of Commerce, 494 U.S. 652 (1990), in which the
Supreme Court upheld the validity of state statutes reguiring
that all corporate political contributions come from segregated
accounts. In this case, however, the plain language of RSA
664:4 I does not lend itself to defendants' reading. In fact,
defendants have failed to point to any provision of New
Hampshire's campaign finance law that speaks to a corporation's
ability to make political contributions from so-called segregated
accounts. Thus, unlike the Michigan statute at issue in Austin,
RSA 644:4 I does not "exempt[] from [its] general prohibition
contribute to a candidate or political committee.
8 against corporate political spending any expenditure made from a
segregated fund." Austin, 494 U.S. at 655.2
Conseguently, the guestion becomes whether an outright
statutory ban on political contributions by corporate entities
(other than registered "political committees") can withstand
constitutional scrutiny. And, in light of existing Supreme Court
precedent, the court is constrained to conclude that RSA 664:4 I
exceeds constitutionally permissible bounds. As the Supreme
Court observed in Austin:
2 The only reference the court has found in the record to so-called "segregated funds" appears on registration papers filed with the Secretary of State by The Limited, Inc. Political Action Committee, Inc. In its registration papers, that political committee represented that it would "serve as a separate segregated fund for certain employees of The Limited, Inc." See Exhibit 3 to plaintiffs' memorandum (document no. 10). Based upon those papers, it would appear that The Limited, Inc. has formed a distinct corporate entity to serve as a political committee in the State of New Hampshire. How, or even whether, defendants permit The Limited, Inc. to contribute to that political committee is unclear, particularly in light of the express prohibition against corporate contributions to political committees set forth in RSA 664:4 I. Of course, the fact that defendants may not be enforcing, or selectively enforcing, the statute as written in no way undermines plaintiffs' constitutional challenge to that statute. See, e.g., N.H. Right to Life Political Action Com, v. Gardner, 99 F.3d 8 (1st Cir. 1996).
9 [T]he use of funds to support a political candidate is "speech"; independent campaign expenditures constitute political expression at the core of our electoral process and of the First Amendment freedoms. The mere fact that the [plaintiff] is a corporation does not remove its speech from the ambit of the First Amendment.
Austin, 494 U.S. at 657 (citations and internal quotation marks
omitted).
So, to survive plaintiffs' constitutional challenge, the
statutory ban on corporate contributions imposed by RSA 664:4 I
must advance a compelling state interest. See FEC v. Mass.
Citizens for Life, Inc., 479 U.S. 238, 256 (1986); Buckley v.
Valeo, 424 U.S. 1, 44-45 (1976) (per curiam) . Defendants have
failed to identify any compelling state interest. They have
merely directed the court to the New Hampshire Legislature's
Declaration of Purpose relative to the campaign finance law,
which provides, in pertinent part:
The state has a compelling interest in encouraging potential candidates to run for office and in having those races be competitive to ensure greater and more effective representation of the people of the state of New Hampshire. Reasonable political campaign budgets allow a candidate to spend thousands of hours meeting with individuals rather than thousands of hours meeting the ever increasing demand for campaign funding.
10 •k -k -k
Unimpeded access to the ballot is crucial to the realization of the constitutional guarantee of a representative form of government. The philosophical basis for democracy is the egual opportunity to participate. Greater participation increases effective representation, preserving the political power guaranteed to the people by the constitution. Expenditure limitations will allow greater ballot access, freer competition of ideas through individual speech and interaction, and more competitive campaigns.
N.H. Laws, Chapter 212 (SB 178), section 212:1 (Exhibit 1 to
defendants' memorandum). While the New Hampshire legislature has
certainly identified significant state interests and values
relating to the electoral process, defendants have failed to link
the advancement of those goals to the State's outright ban on
corporate political speech in the form of campaign contributions.
For example, defendants have failed to allege (much less
demonstrate) that the State's interests identified by the
legislature could not be met by imposing on corporations
reasonable contribution limitations (as is done with
individuals), rather than an outright ban. See, e.g.. Federal
Election Comm'n v. Mass. Citizens for Life, Inc., 479 U.S. 238,
265 (1986) ("Where at all possible, government must curtail
speech only to the degree necessary to meet the particular
11 problem at hand, and must avoid infringing on speech that does
not pose the danger that has prompted regulation.").
To be sure, states may constitutionally impose reasonable
and measured limitations upon the source and amount of political
contributions made by corporations. See, e.g., Austin, 494 U.S.
at 659-60; Mass. Citizens for Life, 479 U.S. at 257-58. However,
those limitations must be justified by, and narrowly tailored to
advance, a compelling state interest. Defendants have failed to
demonstrate that the complete ban on corporate political
contributions imposed by RSA 664:4 I meets that demanding test,
nor is it likely that they ever could. Accordingly, RSA 664:4 I,
like its statutory counterpart, RSA 664:5 V (limiting independent
political expenditures by political committees to $1,000), fails
to survive constitutional scrutiny. See N.H. Right to Life
Political Action Comm, v. Gardner, 99 F.3d 8, 19 (1st Cir. 1996)
(concluding that the $1,000 limit imposed on independent
expenditures by political committees by RSA 664:5 V "severely
restricts political speech" and holding that "the First Amendment
does not tolerate such drastic limitations of protected political
advocacy."). C f . Citizens Against Rent Control v. Berkeley, 454
12 U.S. 290, 297 (1981) ("In First National Bank of Boston v.
Bellotti, 435 U.S. 765 (1978), we held that a state could not
prohibit corporations any more than it could preclude individuals
from making contributions or expenditures advocating views on
ballot measures.").
B. The Constitutionality of the So-Called "Cap Gap"
RSA 664:4 V creates an incentive for candidates to
participate in New Hampshire's voluntary campaign expenditure
limits program. If a candidate pledges to adhere to set limits,
the statutory cap on individual contributions to his or her
campaign is raised from $1,000 to $5,000. If a candidate elects
not to be bound by the expenditure limits, individual
contributions to his or her campaign cannot, by statute, exceed
$1,000 - a campaign contribution cap previously upheld by the
Supreme Court. See Buckley v. Valeo, 424 U.S. at 29.3
3 The Supreme Court recently granted a petition for certiorari in Shrink Missouri Government PAC v. Adams, 161 F.3d 519 (8th Cir. 1998). In that case, the Eighth Circuit concluded that, "After inflation, limits of $1,075 [to candidates for governor] . . . cannot compare with the $1,000 limit approved in Buckley twenty-two years ago. . . . In today's dollars, the [challenged statute] appear[s] likely to have a severe impact on political dialogue by preventing many candidates for public office from amassing the resources necessary for effective
13 Plaintiffs' thrust is that the so-called statutory "cap gap"
unduly burdens and penalizes those candidates who refuse to
voluntarily limit their campaign spending. In support of their
position, plaintiffs rely, at least in part, on this court's
recent decision in Kennedy v. Gardner, No. 96-574-B (D.N.H. June
5, 1998) (Barbadoro, C.J.) ("Kennedy I"). In Kennedy I,
plaintiff challenged those aspects of RSA ch. 655 which provided
that a candidate for state or federal office who was unwilling to
adhere to the State's voluntary campaign expenditure limits must
file a specified number of primary petitions and pay a filing fee
when declaring his or her candidacy. Candidates who agreed to
limit their campaign expenditures, however, were not so burdened.
The court concluded that the added burdens imposed on candidates
who chose not to adhere to the campaign expenditure limits were
impermissibly coercive and insufficiently related to the goal
advocacy." Id., at 522-23 (citations and internal guotation marks omitted). While predicting Supreme Court decisions is more a conjurer's art than a science, still, it is conceivable, that the Supreme Court may revisit the constitutionality of the $1,000 cap on contributions to candidates for public office. As the law currently stands, however, such caps are, generally speaking, permissible. And, plaintiffs do not challenge the $1,000 limit as unconstitutional by reason of economic erosion or the effects of inflation.
14 sought to be achieved by the statutory scheme - encouraging
candidates to agree to limit campaign expenditures.
[The challenged statutory provisions here] differ from the statutory schemes at issue in Buckley and Vote Choice both because the state has chosen a coercive means to achieve adherence to its spending cap and because the condition those laws impose on gaining access to the ballot - limiting the constitutional right to make campaign expenditures - bears no reasonable relationship to any legitimate reason for controlling ballot access.
Rather than choosing to encourage compliance with a spending cap by providing incentives such as public financing or free television time. New Hampshire has opted to penalize non-complying candidates by making it more difficult for them to gain access to the ballot.
Kennedy I, slip op. at 10-11.
In this case, however, the challenged provisions of New
Hampshire's campaign finance laws are more like those at issue in
Vote Choice. Here, the State has chosen to furnish candidates
with an incentive to limit their campaign expenditures, rather
than impose added burdens on those who will not: those who agree,
are permitted to accept contributions of up to $5,000 from
individual contributors. If candidates elect not to voluntarily
limit their expenditures, they remain subject to a
15 constitutionally permissible $1,000 cap on individual
contributions.
Plaintiffs do not challenge the constitutionality of the
$1,000 cap on individual contributions to candidates who elect
not to limit their campaign expenditures. Instead, they argue
that by relaxing that cap by a factor of five for those
candidates who agree to limit total campaign expenditures, the
statutory scheme unconstitutionally penalizes those who refuse to
compromise their First Amendment right to spend as much as they
see fit on their campaign. As the Court of Appeals observed,
however, such an argument, at least in the context of this case,
is largely semantic. Whether one views the relaxed $5,000 cap as
a "benefit" to participating candidates or as a "penalty" to
those who elect not to participate depends largely upon one's
vantage point.
[Plaintiff] attempts to distinguish the public financing cases on the ground that they involve the propriety of conferring benefits in contrast to imposing penalties. She is fishing in an empty pond. For one thing, the distinction that [plaintiff] struggles to draw between denying the carrot and striking with the stick is, in many contexts, more semantic than substantive. This case illustrates the point. The guestion whether Rhode Island's system of
16 public financing imposes a penalty on non-complying candidates or, instead, confers a benefit on those who do comply is a non-issue, roughly comparable to bickering over whether a glass is half full or half empty. After all, there is nothing inherently penal about a $1,000 contribution cap.
Vote Choice, 4 F.3d at 38. In the end, the court reasoned that
Rhode Island's relaxed contribution cap for complying candidates
was more correctly viewed as a "premium" earned by candidates who
voluntarily limited campaign expenditures, rather than a penalty
imposed upon those who did not.
Thus, unlike Kennedy I, which involved statutory provisions
that imposed additional burdens upon candidates who chose not to
limit their campaign expenditures, the statutory scheme at issue
in Vote Choice merely conferred benefits on those candidates who
agreed to voluntarily limit the exercise of their First Amendment
freedoms. So it is in this case. The only "burden" imposed upon
candidates who elect not to limit campaign expenditures is the
$1,000 cap on individual contributions. That cap is plainly
constitutional under existing Supreme Court precedent (and
plaintiffs do not argue otherwise).
17 The challenged statutory provisions simply offer to
candidates who voluntarily agree to limit campaign expenditures
the benefit of a relaxed cap on individual contributions. That
benefit is the quid pro quo for accepting the potential electoral
disadvantages of restricted spending. And, when benefit and
burden are considered together, the choice offered is not so
disproportionate or one-sided as to amount to an
unconstitutionally coercive "stick," in effect compelling
candidates to "voluntarily" agree to spending limits and, in the
process, relinguish their First Amendment rights. The choice is
a fair one - an easier time raising funds but a fixed spending
limit, on the one hand, or a more difficult time raising funds
but unlimited ability to spend, on the other.
Plaintiffs have failed to demonstrate that the $4,000 "cap
gap, standing alone, unconstitutionally infringes upon their
First Amendment rights. As noted by the court of appeals for
this circuit:
[W]e have difficulty believing that a statutory framework which merely presents candidates with a voluntary alternative to an otherwise applicable, assuredly constitutional, financing option imposes any burden on First Amendment rights. In choosing between
18 the [campaign finance options created by the statute] a candidate will presumably select the option which enhances his or her powers of communication and association. Thus, it seems likely that the challenged statute furthers, rather than smothers. First Amendment values.
Vote Choice, 4 F.3d at 39. See also Rosenstiel v. Rodriquez, 101
F.3d 1544, 1552 (8th Cir. 1996) ("This [statutory] scheme
presents candidates with an additional, optional campaign funding
choice, the participation in which is voluntary. Under this
choice-increasing framework, candidates will presumably select
the option that they feel is most advantageous to their
candidacy. Given this backdrop, it appears to us that the
State's scheme promotes, rather than detracts from, cherished
First Amendment values."), cert. denied, 520 U.S. 1229 (1997).
Plaintiffs also invoke the decision in Wilkinson v. Jones,
876 F.Supp. 916 (W.D. Ky. 1995), as support for the proposition
that a 5 to 1 differential in spending caps is inherently
unconstitutional. That reliance is, however, misplaced. The
Wilkinson court considered a statutory scheme that imposed $500
and $100 contribution caps, respectively, on candidates. Despite
the superficial similarity of the "cap gap" ratios in this case
19 and Wilkinson (i.e., 5:1), there are substantive differences
between the statute at issue here and the Kentucky statute
addressed in Wilkinson. The most notable distinction is that the
Kentucky statute established a base-line cap at only $100.
Addressing the constitutionality of that cap, the Wilkinson court
concluded that it (unlike the $1,000 cap sanctioned in Buckley
and at issue in this case) was so low as to "constitute a
penalty" imposed upon candidates who elected not to participate
in the state's publically financed campaign program. Wilkinson,
876 F.Supp. at 929. Accordingly, the court properly concluded
that the statute amounted to an unconstitutional infringement
upon the plaintiffs' First Amendment rights. In this case,
however, the $1,000 cap imposed upon individual contributions is
not so low as to constitute an unconstitutional penalty, nor do
plaintiffs even claim that it is.
Next, the Wilkinson court noted that while the disparity
between contributions to participating and non-participating
candidates appeared to be 5 to 1, it was more correctly viewed as
being 15 to 1: "In actual application, the impact of the
disparity is 15 to 1 since the publicly-financed candidate
20 receives two publicly-funded dollars for each dollar he or she
raises." Wilkinson, 876 F.Supp. at 929. Thus, the court's
conclusion that the "incentive, or 'carrot, ' offered to publicly-
financed candidates in this instance is, in practical
application, a 'stick' used upon privately-financed candidates,"
is not one readily transferrable to the claims raised by
plaintiffs here. In short, Wilkinson does not stand for the
proposition that a 5 to 1 disparity in maximum allowable
individual campaign contributions is an unconstitutionally
coercive means by which to induce candidates to voluntarily
comply with campaign spending limits.
Here, RSA 664:4 V does not impermissibly coerce or penalize
candidates. And, as in Vote Choice, the court concludes that the
challenged statutory scheme does not unconstitutionally burden
plaintiffs' First Amendment rights. Instead, it "achieves a
rough proportionality" between the advantages available to
complying candidates (i.e., increased contribution cap) and the
disadvantages such candidates must accept (i.e., fixed spending
limits). "Put another way, the state exacts a fair price from
complying candidates in exchange for receipt of the challenged
21 benefit" and "neither penalizes certain classes of office-seekers
nor coerces candidates into surrendering their First Amendment
rights." Id.4
Given the foregoing, the court concludes that the so-called
"cap gap" created by RSA 664:4 V does not impermissibly burden
4 To be sure, the statutory scheme at issue in Vote Choice differs significantly from that involved in this case. There, candidates who voluntarily elected to limit campaign spending also agreed to other restrictions upon their First Amendment rights, including a pledge to limit the amounts which they would raise during their campaigns. In exchange for the relinguishment of those substantial rights, the State of Rhode Island offered a correspondingly substantial package of benefits (e.g., a higher cap on individual contributions, free television access, and matching funds up to $75, 000) . New Hampshire's statutory scheme exacts fewer concessions from candidates who agree to adhere to campaign spending limits: they relinguish only their right to spend unlimited amounts on their campaigns (so, for example, it does not appear that they must agree to limit the total amount of money that they might raise in connection with their campaigns). Accordingly, the State has offered those candidates comparatively fewer benefits than those offered under the Rhode Island statute: candidates participating in the spending cap program receive only the ability to raise more money (i.e., $5,000) from individual contributors. Despite the differences in these statutory schemes, however, they share a fundamental similarity: the package of benefits offered to participating candidates is of roughly comparable value to the disadvantages they accept. This rough proportionality between what is given up and what is received necessarily means that candidates who elect to participate in the State's voluntary spending cap program receive no gualitative advantage over those who choose not to participate.
22 plaintiffs' exercise of political speech and survives
constitutional scrutiny.
Conclusion
New Hampshire's campaign finance law does not permit
corporations (other than those specifically registered with the
Secretary of State as "political committees" and subject to the
restrictions imposed upon political committees) to contribute to
candidates for public office, political parties, or political
committees. While there may, arguably, be unmarked statutory
paths on which a corporation might successfully navigate around
the law's outright ban on corporate donations to political
candidates and political committees, even defendants appear
hesitant (or unable) to describe in any detail the route
interested corporations should follow to avoid prosecution under
the statute. The unambiguous ban on corporate political
contributions imposed by RSA 664:4 I presents a very real
imposition on corporate political contributions and corporate
rights to free speech guaranteed by the First Amendment.
23 Defendants' implicit and undeveloped suggestion that
corporations can creatively avoid prosecution for violations of
Chapter 664: (1) because there are means by which they might
circumvent the unambiguous ban on corporate political
contributions imposed by RSA 664:4 I; or (2) because the Attorney
General chooses not to enforce the statute as written, does
little to either undermine plaintiffs' standing to challenge RSA
664:4 I or save that statute from its fatal constitutional
defect. See generally N.H. Right to Life, 99 F.3d at 15 ("the
danger of this statute is, in large measure, one of self
censorship . . . a harm that can be realized even without an
actual prosecution.") (citations and internal guotation marks
omitted). The absolute ban on corporate political speech
established by RSA 664:4 I is unconstitutional.
The statutory provisions which create the so-called "cap
gap" between candidates who agree to campaign spending limits and
those who do not, however, survive plaintiffs' constitutional
challenge. The State of New Hampshire has a legitimate interest
in encouraging candidates for public office to limit the amounts
spent on campaigns. The statutory scheme enacted to promote that
24 goal, at least insofar as it creates a "cap gap" between
participating and non-participating candidates, does not
unconstitutionally restrict First Amendment rights.
For the foregoing reasons, defendants' motion to dismiss
(document no. 4) is denied. Plaintiffs' motion for summary
judgment (document no. 9) is granted in part and denied in part.
The ban on all corporate political contributions imposed by RSA
664:4 I is overly restrictive and unconstitutionally infringes
plaintiffs' First Amendment rights. The "cap gap" created by RSA
664:4 V, however, does not unconstitutionally burden plaintiffs'
political speech and, therefore, survives their constitutional
challenge. The Clerk of the Court shall enter judgment in
accordance with this order and close the case.
SO ORDERED.
Steven J. McAuliffe United States District Judge
September 30, 1999
cc: Alfred J. T. Rubega, Esg. William C. Knowles, Esg. Senior Ass't. A.G. Martin P. Honigberg