United states court of appeals for the second circuit

30

make a campaign contribution, if for no other reason than that the third person must exercise his

own free will to make a contribution. 

Nevertheless, the District Court upheld the CFRA’s solicitation bans based primarily upon

its finding that contractors and lobbyists could exert improper influence over state officials by

“bundling campaign contributions” made by their clients or employees.  Green Party I, 590 F. Supp.

2d at 343 & n.33.  The threat posed by “bundling” is that contractors and lobbyists will promise to

deliver large numbers of coordinated contributions to a state official in exchange for political favors. 

A prospective state contractor, for instance, might promise to organize a large fundraising event in

exchange for a candidate’s assistance in securing a lucrative state contract.

There are good reasons to think that the threat of bundling does not provide a compelling

justification for the solicitation bans, especially with regard to lobbyists.  But even assuming, without

deciding, that the threat of bundling makes the anti-corruption interest compelling in this context,

the CFRA’s ban on solicitations is by no means narrowly tailored to address that threat.  

In order to narrowly tailor a law to address a problem, the “government must curtail speech

only to the degree necessary to meet the particular problem at hand,” and the government “must

avoid infringing on speech that does not pose the danger that has prompted regulation.”  Fed.

Election Comm’n v. Mass. Citizens for Life, Inc., 479 U.S. 238, 265 (1986).  The government must prove

that there is no “less restrictive alternative” to the law in question, for “[i]f a less restrictive

alternative would serve the Government’s purpose, the legislature must use that alternative.”  United

States v. Playboy Entm’t Group, Inc., 529 U.S. 803, 813 (2000).

Here, the state has not met its burden to show that the CFRA’s solicitation ban is narrowly

tailored to address the problem posed by “bundling,” for the ban prohibits a wide range of activity

unrelated to bundling, and there are several less restrictive alternatives that would more directly

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address the perceived bundling threat.  For one thing, the CFRA prohibits small-scale solicitation

efforts that could not possibly be deemed “bundling.”  A state contractor, for instance, is prohibited

under the CFRA from advising his mother about whether she should contribute to a particular

gubernatorial candidate.  A less restrictive alternative to address the problem of bundling would be

to ban only large-scale efforts to solicit contributions—for example, a ban on state contractors

organizing fundraising events of a certain size.

In addition, the problem with bundling, according to the District Court, is that lobbyists will

bundle contributions by their “deep-pocketed clients” and state contractors will bundle

contributions from their “many employees and subcontractors.”  Green Party I, 590 F. Supp. 2d at

343.  If that is the case, then a less restrictive means to address the bundling problem would be

simply to ban lobbyists from soliciting contributions from their clients and contractors from

soliciting contributions from their employees and subcontractors.  The CFRA, however, bans all

solicitation efforts by lobbyists and contractors—even those not directed at clients, employees, or

subcontractors.

Finally, insofar as the CFRA’s solicitation ban was intended to combat corruption and the

appearance of corruption caused by “bundling,” the state has not adequately explained why it could

not simply outlaw bundling itself.  Indeed, the CFRA currently defines the term “solicit” to include,

among other things, “bundling contributions,” see Conn. Gen. Stat. § 9-601(26), and the SEEC has

issued a decision that defines the term “bundling,” see Green Party I, 590 F. Supp. 2d at 297 (citing

SEEC Declaratory Ruling 2006-1, at 4).  The problem is that, in addition to banning bundling, the

CFRA also bans many other activities that often do not involve bundling.  See Conn. Gen. Stat.

§ 9-601(26) (broadly defining “solicit” to include, among other things, “requesting that a

contribution be made” and “serving as . . . deputy treasurer” of a “political committee”).

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We are not, of course, called upon here to determine the constitutionality of other,

hypothetical laws.  Our conclusion is only that less restrictive alternatives exist, and thus the state has

not met its burden of showing that the CFRA’s solicitation ban is narrowly tailored.  We hold,

therefore, that on this record, the CFRA’s bans on the solicitation of contributions, see Conn. Gen.

Stat. §§ 9-610(h), 9-612(g)(2), violate the First Amendment.

III.

Remaining Claims

In addition to their First Amendment claims, plaintiffs have asserted claims under the Equal

Protection Clause and the Due Process Clause of the Fourteenth Amendment, as well as under the

Connecticut Constitution.  

The equal protection and due process claims, asserted only by the Association of

Connecticut Lobbyists and Barry Williams, challenge provisions of the CFRA that we have struck

down under the First Amendment—namely, the CFRA’s ban on lobbyist contributions and the

solicitation of contributions by lobbyists.  Thus we need not address those claims.

With respect to the claims under the Connecticut Constitution, we agree with the District

Court that “there is no indication” in Connecticut case law that the Connecticut Constitution

“provide[s] broader protection [than] the [federal constitutional] rights at issue here.”  Green Party I,

590 F. Supp. 2d at 346.  Thus, insofar as we have held that certain provisions of the CFRA are

consistent with the First Amendment, the Connecticut Constitution provides no additional

basis—beyond the First Amendment—for challenging the CFRA.  Insofar as we have held that

certain provisions of the CFRA violate the First Amendment, it is unnecessary for us to

decide—and we expressly decline to decide—whether those provisions also violate the Connecticut

Constitution.

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 That statute, which was recently amended, now reads in full:

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(a) If, during a period beginning on or after the forty-fifth day prior to any

special election scheduled relative to any vacancy in the General Assembly

and ending the day after such special election, a court of competent

jurisdiction prohibits or limits, or continues to prohibit or limit, the

expenditure of funds from the Citizens’ Election Fund established in section

9-701 for grants or moneys for candidate committees authorized under

sections 9-700 to 9-716, inclusive, for a period of seven days or more, (1)

sections 1-100b, 9-700 to 9-716, inclusive, 9-750, 9-751 and 9-760 and

section 49 of public act 05-5 of the October 25 special session shall be

inoperative and have no effect with respect to any race of such special

election that is the subject of such court order until the day after such special

election, and (2) (A) the amendments made to the provisions of the sections

of the general statutes pursuant to public act 05-5 of the October 25 special

session shall be inoperative until the day after such special election with

respect to any such race, (B) the provisions of said sections of the general

statutes, revision of 1958, revised to December 30, 2006, shall be effective

until the day after such special election with respect to any such race, and (C)

the provisions of subsections (g) to (j), inclusive, of section 9-612 shall not be

implemented until the day after such special election with respect to any such

race. 

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IV.

The Severability of the Unconstitutional Provisions and the Appropriate Injunctive

Relief

We have held that two aspects of the CFRA violate the First Amendment: the ban on

lobbyist contributions and the ban on the solicitation of contributions.  The question arises,

therefore, whether those provisions are severable from the CFRA or whether the entire CFRA must

be struck down along with the unconstitutional provisions.  The District Court did not consider the

severability issue because it held that each of the challenged provisions was constitutional.

In our first opinion, published today, which addressed plaintiffs’ challenge to the CFRA’s

Citizen Election Program (CEP), we remanded the cause to the District Court to determine in the

first instance whether certain unconstitutional provisions of the CEP were severable.  We specifically

instructed the District Court to examine the meaning of § 9-717 of the General Statutes of

Connecticut in connection with its ruling on the severability issue.

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(b) Except as provided for in subsection (a) or (c) of this section, if, on or

after April fifteenth of any year in which a state election is scheduled to

occur, a court of competent jurisdiction prohibits or limits, or continues to

prohibit or limit, the expenditure of funds from the Citizens’ Election Fund

established in section 9-701 for grants or moneys for candidate committees

authorized under sections 9-700 to 9-716, inclusive, for a period of thirty

days or more, (1) sections 1-100b, 9-700 to 9-716, inclusive, 9-750, 9-751 and

9-760 and section 49 of public act 05-5 of the October 25 special session

shall be inoperative and have no effect with respect to any race that is the

subject of such court order until December thirty-first of such year, and (2)

(A) the amendments made to the provisions of the sections of the general

statutes pursuant to public act 05-5 of the October 25 special session shall be

inoperative until December thirty-first of such year, (B) the provisions of said

sections of the general statutes, revision of 1958, revised to December 30,

2006, shall be effective until December thirty-first of such year, and (C) the

provisions of subsections (g) to (j), inclusive, of section 9-612 shall not be

implemented until December thirty-first of such year. If, on the April

fifteenth of the second year succeeding such original prohibition or

limitation, any such prohibition or limitation is in effect, the provisions of

subdivisions (1) and (2) of this section shall be implemented and remain in

effect without the time limitation described in said subdivisions (1) and (2). 

(c) If, during a year in which a state election is held, on or after the second

Tuesday in August set aside as the day for a primary under section 9-423, a

court of competent jurisdiction prohibits or limits the expenditure of funds

from the Citizens’ Election Fund established in section 9-701 for grants or

moneys for candidate committees authorized under sections 9-700 to 9-716,

inclusive, for a period of fifteen days, or if said Tuesday occurs during a

period of fifteen days or more in which period such a court continues to

prohibit or limit such expenditures, then, after any such fifteen-day period,

(1) sections 1-100b, 9-700 to 9-716, inclusive, 9-750, 9-751 and 9-760 and

section 49 of public act 05-5 of the October 25 special session shall be

inoperative and have no effect with respect to any race that is the subject of

such court order until December thirty-first of such year, and (2) (A) the

amendments made to the provisions of the sections of the general statutes

pursuant to public act 05-5 of the October 25 special session shall be

inoperative until December thirty-first of such year, (B) the provisions of said

sections of the general statutes, revision of 1958, revised to December 30,

2006, shall be effective until December thirty-first of such year, and (C) the

provisions of subsections (g) to (j), inclusive, of section 9-612 shall not be

implemented until December thirty-first of such year. If, on the April

fifteenth of the second year succeeding such original prohibition or

limitation, any such prohibition or limitation is in effect, the provisions of

subdivisions (1) and (2) of this section shall be implemented and remain in

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effect without the time limitation described in said subdivisions (1) and (2).

(d) Any candidate who has received any funds pursuant to the provisions of

sections 1-100b, 9-700 to 9-716, inclusive, 9-750, 9-751 and 9-760 and

section 49 of public act 05-5 of the October 25 special session prior to any

such prohibition or limitation taking effect may retain and expend such funds

in accordance with said sections unless prohibited from doing so by the

court. 

Conn. Gen. Stat. § 9-717 (as amended by Public Act 10-2 on April 14, 2010).

35

We adopt that same approach here and remand to the District Court to determine whether

the unconstitutional provisions of the CFRA addressed in this opinion are severable from the

remainder of the law.  In so doing the District Court should examine the relevancy, if any, of

§ 9-717.  After the District Court has ruled on the severability issue, it should then enter appropriate

injunctive relief in light of our holdings in this opinion.

CONCLUSION

In summary, we hold as follows:

(1) The CFRA’s bans on contributions by state contractors, lobbyists, and associated

individuals, see Conn. Gen. Stat. §§ 9-610(g), 9-612(g)(2)(A)-(B), are “marginal speech restrictions”

that withstand scrutiny under the First Amendment if they are “closely drawn to match a sufficiently

important [government] interest.”  Fed. Election Comm’n v. Beaumont, 539 U.S. 146, 161-62 (2003)

(quotation marks omitted).

(2) The CFRA’s ban on contractor contributions, see Conn. Gen. Stat. § 9-612(g)(2)(A)-(B), is

consistent with the First Amendment.  The ban furthers “sufficiently important” government

interests, Beaumont, 539 U.S. at 162 (quotation marks omitted), in that it addresses both the

“actuality” and the “appearance” of corruption involving state contractors, see Buckley v. Valeo, 424

U.S. 1, 26 (1976).  It is also “closely drawn” to achieve those interests.  Beaumont, 539 U.S. at 162

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(quotation marks omitted).  With respect to the ban on contractor contributions, therefore, we

affirm the District Court’s grant of summary judgment to defendants.

(3) The CFRA’s ban on lobbyist contributions, Conn. Gen. Stat. § 9-610(g), violates the First

Amendment.  Although an outright ban on contractor contributions can be justified as a means to

address the appearance of corruption caused by Connecticut’s recent corruption scandals, those

scandals did not involve lobbyists and thus do not provide sufficient justification for an outright ban

on lobbyist contributions.  Rather, even assuming, without deciding, that the state’s anticorruption

interest is “sufficiently important” in this context, an outright ban on lobbyist contributions—as

opposed to a mere limit on lobbyist contributions—is not closely drawn to achieve the state’s

interest.  See Beaumont, 539 U.S. at 162.  With respect to the ban on lobbyist contributions, therefore,

we reverse the District Court’s grant of summary judgment to defendants and instruct the Court to

grant summary judgment to plaintiffs.

(4) The CFRA’s ban on the solicitation of contributions, see Conn. Gen. Stat. §§ 9-610(h),

9-612(g)(2)(A)-(B), is a law that “burden[s] political speech” and is, as a result, subject to strict

scrutiny, Citizens United v. Fed. Election Comm’n, 130 S. Ct. 876, 898 (2010).  The law will be upheld

only if the “[state] . . . prove[s] that the restriction furthers a compelling interest and is narrowly

tailored to achieve that interest.”  Id. (quotation marks omitted).  

(5) Under the strict scrutiny standard, the CFRA’s solicitation ban, see Conn. Gen. Stat.

§§ 9-610(h), 9-612(g)(2)(A)-(B), violates the First Amendment.  Even assuming, without deciding,

that the state has a “compelling” interest in preventing contractors and lobbyists from “bundling”

contributions, the state has failed to establish that the CFRA’s solicitation ban is narrowly tailored to

meet that interest because the law prohibits numerous activities unrelated to “bundling.”  With

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respect to the solicitation ban, therefore, we reverse the District Court’s grant of summary judgment

to defendants and instruct the Court to grant summary judgment to plaintiffs.

(6) We need not address plaintiffs’ equal protection and due process claims, for they

challenge provisions of the CFRA that we have struck down under the First Amendment—namely,

the CFRA’s ban on lobbyist contributions and the solicitation of contributions by lobbyists.

(7) Insofar as we have upheld certain provisions of the CFRA under the First Amendment,

we likewise uphold those provisions under the Connecticut Constitution, which provides no

additional basis—beyond the First Amendment—for challenging the provisions in question.  Insofar

as we have held that certain provisions of the CFRA violate the First Amendment, it is unnecessary

for us to decide—and we expressly decline to decide—whether those provisions also violate the

Connecticut Constitution.

(8) We remand the cause to the District Court (a) to determine, in the first instance, whether

the unconstitutional provisions of the CFRA are severable from the remainder of the statute; (b) to

grant appropriate injunctive relief in light of our holdings in this opinion and the District Court’s

resolution of the severability issue on remand; and (c) to conduct any further proceedings, consistent

with this opinion, that may be required.

*          *          *

The February 11, 2009 partial judgment of the District Court on Count Four of this action is

AFFIRMED in part and REVERSED in part as set forth in sections (1) through (7) of this

conclusion.  The cause is REMANDED to the District Court for further proceedings in

accordance with the instructions set forth in section (8) of this conclusion.  

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Recognizing that an election has been scheduled for November 2, 2010, and given the

importance of this case to ongoing campaigns for state office, we request that the District Court act

expeditiously in considering the issues presented for decision on remand.