FILED: NEW YORK COUNTY CLERK 10/29/2013

NYSCEF DOC. NO. 11

INDEX NO. 159965/2013

RECEIVED NYSCEF: 10/29/2013

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK
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NEW YORK STATE SENATE REPUBLICAN
:

CAMPAIGN COMMITTEE,
:
Index No. _____________E

:






Petitioner,
:


:




- against -
:


:

COMMISSION TO INVESTIGATE PUBLIC
:

CORRUPTION,
:

:





Respondent.
:
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MEMORANDUM OF LAW IN SUPPORT OF PETITION TO QUASH AND FOR A
PROTECTIVE ORDER















Michael Chertoff






Robert K. Kelner






COVINGTON & BURLING LLP






1201 Pennsylvania Avenue






Washington, DC 10004






(202) 662-6000







Jennifer Farina






620 Eighth Avenue






New York, NY 10018






(212) 841-1140


Attorneys for Petitioner New York State Senate

Republican Campaign Committee

TABLE OF CONTENTS

PRELIMINARY STATEMENT .............................................................................................................. 1

STATEMENT OF FACTS ..................................................................................................................... 1
ARGUMENT ...................................................................................................................................... 6
POINT I: THE COMMISSIONS SUBPOENA SHOULD BE QUASHED AND A
PROTECTIVE ORDER ISSUED DIRECTING THAT THE COMMITTEE
NEED NOT RESPOND TO IT. ......................................................................................... 6
A.

The Subpoena is Not a Valid Exercise of the Commissions Subpoena

Power. ..................................................................................................................... 7

B.

The Subpoena is Overbroad and Unduly Burdensome. .......................................... 8

C.

The Subpoena Unnecessarily Abridges the Committees First Amendment

Rights of Free Political Expression and Association. ............................................. 9

D.

The Subpoena is Tainted by Impermissible Partisan Bias. ................................... 15

CONCLUSION .................................................................................................................................. 19

TABLE OF AUTHORITIES
Page(s)
Cases
303 W. 42nd St. Corp. v. Klein,
46 N.Y.2d 686 (1979) ..................................................................................................16, 17, 18
Avella v. Batt,
33 A.D.3d 77 (3d Dept 2006) .............................................................................................9, 11
Buckley v. Valeo,
424 U.S. 1 (1976) ............................................................................................................. passim
California Democratic Party v. Lungren,
919 F.Supp. 1397 (N.D. Cal. 1996) ...........................................................................................9
Carlisle v. Bennett,
268 N.Y. 212 (1935) ..................................................................................................................6
City of Cleburne v. Cleburne Living Center,
473 U.S. 432 (1985) .................................................................................................................15
Clubside, Inc. v. Valentin,
468 F.3d 144 (2d Cir. 2006).....................................................................................................16
Colorado Republican Fed. Campaign Comm. v. FEC,
518 U.S. 604 (1996) .............................................................................................................9, 11
Commn on Lobbying v. Simmons,
4 Misc. 3d 749 (Sup. Ct. Albany Co. 2004) ..............................................................................9
Crowley Foods, Inc. v. Lefkowitz,
75 A.D.2d 940 (3d Dept 1980) .................................................................................................6
FEC v. Larouche Campaign,
817 F.2d 233 (2d Cir. 1987).....................................................................................................12
FEC v. Machinists Non-Partisan Political League,
655 F.2d 380 (D.C. Cir. 1981) .................................................................................................11
Golden v. Clark,
76 N.Y.2d 618 (1990) ..............................................................................................................15
Matter of Goverl Consulting Corp. v. New York Temporary State Commn on Lobbying,
113 A.D. 611 (3d Dept. 1986), revd for reasons stated in dissent, 68 N.Y.2d 839 (1986)......9
Green Party of Connecticut v. Garfield,
616 F.3d 213 (2d Cir. 2010).....................................................................................................15
ii

Harlen Associates v. Inc. Vill. of Mineola,

273 F.3d 494 (2d Cir. 2001).........................................................................................15, 16, 18
Kalkstein v. DiNapoli,
170 Misc.2d 165 (Sup. Ct. Albany Co. 1996), affd in relevant part, 228 A.D.2d 28 ....6, 7, 13
Kalkstein v. DiNapoli,
228 A.D.2d 28 (3d Dept 1997) ...........................................................................................7, 10
Madole v. Barnes,
20 N.Y.2d 169 (1967) ..............................................................................................................15
Myer v. Myer,
271 A.D. 465 (1st Dept 1946), affd, 296 N.Y. 979, 73 N.E.2d 562 (1947) ..........................15
Myerson v. Lentini Bros. Moving & Stor. Co.,
33 N.Y.2d 250 (1973) ............................................................................................................6, 7
Natale v. Town of Ridgefield,
170 F.3d 258 (2d Cir. 1999).....................................................................................................15
New York Republican State Comm. v. New York State Commn on Govt Integrity,
138 Misc. 2d 790 (Sup. Ct. N.Y. Co. 1988), affd,140 A.D.2d 1014 (1st Dept 1988)13, 14, 18
Nicholson v. State Commn on Judicial Conduct,
50 N.Y.2d 597 (1980) ..............................................................................................................10
Nicholson v. State Commn on Judicial Conduct,
68 A.D.2d 851 (1979) ................................................................................................................8
In re Office of Atty Gen. of State of New York,
269 A.D.2d 1 (1st Dept 2000) ..............................................................................................8, 9
Perry v. Schwarzenegger,
591 F.3d 1147 (9th Cir. 2010) .................................................................................................11
San Francisco County Democratic Cent. Comm. v. Eu,
826 F.2d 814 (9th Cir.1987), affd, 489 U.S. 214 (1989) ........................................................10
Tashjian v. Republican Party of Connecticut,
479 U.S. 208 (1986) ...................................................................................................................9
Vill. of Willowbrook v. Olech,
528 U.S. 562 (2000) .................................................................................................................15
White Bay Enter., Ltd. v. Newsday, Inc.,
288 A.D.2d 211 (2d Dept 2001) ...............................................................................................8

iii

Williams v. Rhodes,
393 U.S. 23 (1968) (Douglas, J., concurring) ..........................................................................15
Yick Wo v. Hopkins,
118 U.S. 356 (1886) .................................................................................................................15

Statutes
1988 N.Y. Sess. Law Serv. 71 .......................................................................................................14
CPLR 2304....................................................................................................................................1
CPLR 3103................................................................................................................................1, 8
N.Y. Elec. Law Art. 14 ..................................................................................................................13
N.Y. Elec. Law 2-100 ...................................................................................................................2
N.Y. Elec. Law 14-100 .................................................................................................................1
N.Y. Elec. Law 14-102 ...............................................................................................................14
N.Y. Elec. Law 14-124 ...........................................................................................................2, 14
N.Y. Exec. Law 6 ..........................................................................................................................2
N.Y. Exec. Law 63 ........................................................................................................................2

Constitutional Provisions
N.Y. Const. art. I, 6 ...............................................................................................................15, 17
N.Y. Const. art. I, 11 .............................................................................................................15, 17
U.S. Const. amend. I .............................................................................................................. passim
U.S Const. amend. XIV, 1 ....................................................................................................15, 17

Other Authorities
Executive Order (Gov. Andrew Cuomo) No. 106 .......................................................................2, 7

iv

Jesse McKinley & Thomas Kaplan, Cuomos Office Is Said to Rein In Ethics Board He Created,
N.Y. Times, Oct. 8, 2013 .....................................................................................................5, 17
Kenneth Lovett, Cuomos anti-corruption panel stops at investigating his own Democratic party,
N.Y. Daily News, Oct. 3, 2013 ............................................................................................5, 17
Kenneth Lovett, Gov. Cuomo leans on independent corruption panel, N.Y. Daily News, Sept.
30, 2013....................................................................................................................................17
Rules of the New York Republican State Committee (2011) ..........................................................2
Thomas Kaplan, Panel to Investigate State Democratic Party, N.Y. Times, Oct. 15, 2013 .....5, 18


Petitioner New York State Senate Republican Campaign Committee (the
Committee) submits this memorandum in support of its petition pursuant to CPLR 2304 to
quash the September 20, 2013 subpoena duces tecum issued by the respondent Commission to
Investigate Public Corruption (the Commission), and for a protective order pursuant to CPLR
3103.
PRELIMINARY STATEMENT
The Commission has issued a far-reaching subpoena that demands production by
the Committee, a New York State political party committee, of its most sensitive internal
documents. The subpoena seeks documents and information that go to the heart of the
Committees political functions, and it reaches beyond the campaign finance-related information
that the Committee is already required by law to disclose. By issuing an overbroad and
burdensome subpoena without sufficient justification, and in a manner that strongly suggests
partisan bias, the Commission both disrupts the careful balance struck by the States existing
campaign finance disclosure regime and infringes deeply upon the Committees rights to free
political expression and association. Moreover, because the rules and procedures governing the
Commissions exercise of its powers remain shrouded in mystery, the Commission has exceeded
its own lawful authority to issue the subpoena. To protect the Committees fundamental rights
under the United States and New York State Constitutions against the partisan use of state
power, the Committee requests that the Court quash the subpoena and issue a protective order
directing that the Committee need not respond to the subpoenas remaining demands.
STATEMENT OF FACTS
The Committee is the campaign arm of the Republican members of the New York
State Senate. Affidavit of Judy Crane, 3. It is a party committee, as defined in N.Y. Elec.
1

Law 14-100 (McKinney) and provided for by N.Y. Elec. Law 2-100 (McKinney). Id., 3
and Exhibit 1 (Rules of the New York Republican State Committee (2011), also available at
http://www.wnyrepublicans.com/1/nys-committee-rules.pdf). Its housekeeping account is a
segregated account comprising monies received and expenditures made to maintain a
permanent headquarters and staff and carry on ordinary activities which are not for the express
purpose of promoting the candidacy of specific candidates. N.Y. Elec. Law 14-124(3)
(McKinney); Affidavit of Judy Crane, 6-7. The Committees housekeeping account is an
administrative arrangement. It is not a separate legal entity or otherwise separable from the
Committee as a whole. Affidavit of Judy Crane, 7.
The Commission was appointed by Governor Andrew Cuomo on July 2, 2013,
pursuant to N.Y. Exec. Law 6 (McKinney) (Moreland Act) and N.Y. Exec. Law 63
(McKinney). See Executive Order (Gov. Andrew Cuomo) No. 106. Governor Cuomos
Executive Order instructed this Moreland Commission to [i]nvestigate the State Board of
Elections, Exec. Order 106 II(a), [i]nvestigate weaknesses in existing laws, regulations and
procedures relating to the regulation of lobbying, id. at II(b), and [i]nvestigate weaknesses in
existing laws, regulations and procedures relating to addressing public corruption, conflicts of
interest, and ethics in State Government. Id. at II(c). The Executive Order gave the
Commissioners powers to subpoena, id. at V, but only if the Co-Chairpersons
unanimously approve any subpoena prior to its issuance, id. at V(1), and only if the Co-
Chairpersons unanimously approve such procedures and rules as they believe necessary to
govern the exercise of the powers and authority given or granted to the Commissioners . . . ,
including rules designed to provide transparency while protecting the integrity of the
investigation and rights to privacy. Id. at V(2).

On September 20, 2013, the Committee received a subpoena duces tecum (the
Subpoena) from the Commission demanding extensive information about the Committees
internal communications and housekeeping account. Affirmation of Michael Chertoff, 2-3
and Exhibit 1 (Subpoena). The Subpoena was directed to New York Senate Republican
Campaign Committee-Housekeeping (SRH), despite the fact that housekeeping is not a
separate entity from the Committee as a whole. Id.; Affidavit of Judy Crane, 6-7. The
Subpoena broadly defined SRH to mean NEW YORK SENATE REPUBLICAN
CAMPAIGN COMMITTEE-HOUSEKEEPING. [sic] and all its principals, executives,
representatives, agents, affiliates, present or former parents, subsidiaries, related entities,
directors, officers, chairs, partners, principals, owners, supervisors, employees, agents,
representatives, contractors, attorneys or other persons acting on its behalf, its respective
predecessors or successors or any of the affiliates of the foregoing. Affirmation of Michael
Chertoff, Exhibit 1 (Subpoena), at 2.
The Subpoena demanded that the Committee produce the following documents in
unredacted form, see Affirmation of Michael Chertoff, Exhibit 1 (Subpoena), at 3, for the time
period January 1, 2012, to the present:
(1) An organizational chart of SRHs operations, a list of SRHs full-time
employees and the titles and job responsibilities of such employees,
(2) Documents relating to financial transactions, including contributions received
and made, transfers (in and out), receipts, expenditures, and expenses,
(3) Documents sufficient to identify all expenditures related to the maintenance
of a permanent party headquarters and payment of permanent staff,

(4) Documents and Communications relating to the 2012 New York State Senate
elections (Elections), including Documents and Communications involving any public official,
political candidate, political entity, political campaign, political action committee, political
committee, or political party organization; including the NEW YORK STATE
INDEPENDENCE PARTY HOUSEKEEPING ACCOUNT (IPH),
(5) Documents and Communications involving or relating to IPH, including
discussions about the Elections,
(6) Documents and Communications involving the production or proposed
production of any media materials, including television or print advertisements or mailers,
including by DIGITAL X-PRESS and by STRATEGIC MEDIA PLACEMENT, and including
the production of materials for the Elections,
(7) Materials created for SRH (directly or indirectly) or for IPH by DIGITAL X-
PRESS, and
(8) Materials created for SRH (directly or indirectly) or for IPH by STRATEGIC
MEDIA PLACEMENT. Affirmation of Michael Chertoff, Exhibit 1 (Subpoena), at 6.

Because the Committees housekeeping account is simply an administrative

account, and not a separate entity with a distinct staff or structure, these requests potentially call
for production of all of the Committees internal and external communications regarding the
2012 election. See Affidavit of Judy Crane, 6-7.
According to media reports, the Commission initially sought documents from the
Committee and the New York State Independence Party, 1 and possibly the New York State
Democratic Senate Campaign Committee. 2 But the Commission reportedly agreed to subpoena
the New York State Democratic Committeewhich has its own housekeeping account and,
significantly, is the party committee most closely associated with the Executiveonly after the
Executives involvement in the Commissions operations became public, leading to public
condemnation of the Commissions partisan nature. 3 As of this date, there is no public evidence
that the Commission has in fact issued a subpoena to the New York State Democratic
Committee.
After the Commission granted the Committees request for an extension of the
return date for the Subpoena to October 30, 2013, the Committee made a targeted production of
documents that responded to the Subpoenas demands 1 and 3 for, respectively, organizational
information about the SRH (which, because the housekeeping account is not a separate entity,
was information about the Committees organization) and a log of the housekeeping accounts

1

See Jesse McKinley & Thomas Kaplan, Cuomos Office Is Said to Rein In Ethics Board He
Created, N.Y. Times, Oct. 8, 2013, http://www.nytimes.com/2013/10/08/nyregion/cuomos-
office-is-said-to-rein-in-ethics-board-he-created.html.
2

Kenneth Lovett, Cuomos anti-corruption panel stops at investigating his own Democratic
party, N.Y. Daily News, Oct. 3, 2013, http://www.nydailynews.com/news/politics/cuomo-anti-
corruption-panel-won-probe-party-article-1.1474800.
3

See Thomas Kaplan, Panel to Investigate State Democratic Party, N.Y. Times, Oct. 15, 2013,
http://www.nytimes.com/2013/10/16/nyregion/panel-to-investigate-state-democratic-party.html.

expenditures, which the Committee was already required by law to disclose to the New York
State Board of Elections (SBOE). Affirmation of Michael Chertoff, 2-5; Affidavit of Judy
Crane, 8. On October 21, 2013, the Committee sent a letter to the Commission requesting that
the Subpoena be withdrawn. Affirmation of Michael Chertoff, 6 and Exhibit 2 (letter). The
Commission responded by letter on October 29, 2013, declining to withdraw the Subpoena.
Affirmation of Michael Chertoff, 7-8 and Exhibit 3 (response letter).
ARGUMENT
POINT I:
THE COMMISSIONS SUBPOENA SHOULD BE QUASHED AND A PROTECTIVE
ORDER ISSUED DIRECTING THAT THE COMMITTEE NEED NOT RESPOND TO IT.
The subpoena power of state bodies is not without limit and must be exercised
with great care, especially when it is levied against political organizations and aimed at
discovering core political speech. There are limits upon the power of public officials authorized
to issue subpoenas. Kalkstein v. DiNapoli, 170 Misc.2d 165, 170 (Sup. Ct. Albany Co. 1996),
affd in relevant part, 228 A.D.2d 28 (quoting Myerson v. Lentini Bros. Moving & Stor. Co., 33
N.Y.2d 250, 256 (1973)) (hereinafter Kalkstein I). The New York State Court of Appeals has
emphasized that the statutory authorization to issue subpoenas would not be construed to allow
[a public official] to embark upon a roving course to pry into the affairs of any person.
Myerson, 33 N.Y.2d at 256 (citing Carlisle v. Bennett, 268 N.Y. 212, 217-18 (1935)).

Accordingly, parties who are subject to a non-judicial subpoena duces tecum may

always challenge the subpoena in court on the ground it calls for irrelevant or immaterial
documents or subjects the witness to harassment. Kalkstein I, 170 Misc.2d at 171 (quoting
Myerson, 33 N.Y.2d at 256). An agency issuing a nonjudicial subpoena must show its
authority, the relevancy of the items sought and some factual basis for inquisitorial action. Id.
at 170 (quoting Crowley Foods, Inc. v. Lefkowitz, 75 A.D.2d 940, 941 (3d Dept 1980), citing
6

Myerson, 33 N.Y.2d 250). Commissions are bound by these principles even if their purpose is
not to uncover wrongdoing with respect to current law, but to determin[e] the necessity for
new laws[.] Id. at 171.
Where the material requested implicates the targets right of free political
association, the burden to defend the subpoena is even higher: [T]he governments quest for
information is precluded unless it shows that there are governmental interests sufficiently
important to outweigh the possibility of infringement of 1st Amendment rights. Kalkstein v.
DiNapoli, 228 A.D.2d 28, 31 (3d Dept 1997) (quoting Buckley v. Valeo, 424 U.S. 1, 66 (1976))
(internal brackets omitted) (hereinafter Kalkstein II); see U.S. Const. amend. I.
Here, the Subpoena should be quashed and a protective order issued because the
Subpoena results from an improper exercise of the Commissions subpoena power; is overbroad
and burdensome; infringes upon the Committees rights of free political expression and
association; and reflects that the Commission is operating in a partisan manner that is prejudicial
to the Committee and therefore subjects the [Committee] to harassment. Kalkstein I, 170
Misc.2d at 171.
A.

The Subpoena is Not a Valid Exercise of the Commissions Subpoena Power.

The Subpoena should be quashed because the Commission lacks the authority to

issue it. The Executive Order establishing the Commission requires it to unanimously adopt
rules designed to provide transparency while protecting the integrity of the investigation and
rights to privacy. Executive Order (Gov. Andrew Cuomo) No. 106 (V)(2). Promulgation of
those rules is a predicate to the Commissions subpoena power. The Commission does not
appear to have promulgated the necessary procedures and rules to govern the exercise of the
powers and authority given or granted to the Commissioners. Id. The Committee has requested
that the Commission make available its procedures and rules. Affirmation of Michael Chertoff,
7

6 (letter) and Exhibit 2. The Commission has met this request with silence. Absent any public
indication that the Commission had, prior to issuing the Subpoena, adopted rules and procedures
adequate to protect the integrity of the Commissions investigation and the privacy interests of
subpoenaed parties, as required by the Governors Executive Order, the Subpoena is invalid. See
Nicholson v. State Commn on Judicial Conduct, 68 A.D.2d 851, 852 (1979) (granting motion to
quash subpoena regarding certain requests because of Commissions failure to follow predicate
statutory procedures as to those requests).
B.

The Subpoena is Overbroad and Unduly Burdensome.

Subpoenas that are overbroad and unduly burdensome are unenforceable. White

Bay Enter., Ltd. v. Newsday, Inc., 288 A.D.2d 211, 212 (2d Dept 2001) (quashing subpoenas
that were overly broad and unduly burdensome); see also CPLR 3103. [A] subpoena
should be quashed when the materials sought are, in fact, irrelevant to a legitimate subject of
inquiry, or when the subpoena is being used for a fishing expedition to ascertain the existence of
evidence. In re Office of Atty Gen. of State of New York, 269 A.D.2d 1, 12-13 (1st Dept 2000)
(citations omitted).
The Subpoena at issue here includes requests for all financial records, and for all
Documents and Communications relating to the 2012 New York State Senate elections. See
Affirmation of Michael Chertoff, Exhibit 1 (Subpoena) at 6. These requests are sweepingly
broad. New York State Senate elections are the very purpose of the Committees existence.
Affidavit of Judy Crane, 4. Consequently, the Subpoena potentially demands all of the
Committees paper and electronic documents and communications over a nearly two-year period,
including an election year. Complying with these requests would be acutely burdensome.
The Committee has already produced to the Commission or publicly provides to
the SBOE reports of all of its financial transactions. Affirmation of Michael Chertoff, 5;
8

Affidavit of Judy Crane, 8. The Commission has no factual basis for asserting that the
voluminous additional materials it seeks are relevant to the investigation, and has made no
meaningful effort to ensure that the Subpoena was closely drawn. Even if the Commission were
within its authority to issue the Subpoena, which it is not, no agency of government may
conduct an unlimited and general inquisition into the affairs of persons within its jurisdiction
solely on the prospect of possible violations of law being discovered, especially with respect to
subpoenas duces tecum. See Matter of Goverl Consulting Corp. v. New York Temporary State
Commn on Lobbying, 113 A.D. 611, 614-615 (3d Dept. 1986) (Mahoney, P.J., dissenting), revd
for reasons stated in dissent, 68 N.Y.2d 839, 841 (1986) (internal quotation omitted); see also,
e.g., Commn on Lobbying v. Simmons, 4 Misc. 3d 749, 754 (Sup. Ct. Albany Co. 2004)
(quashing subpoenas when state commission had demonstrated neither the relevance of nor a
basis for the inquisition into financial records). If the Subpoena is enforced, it would allow
the Commission to conduct an unbounded fishing expedition into the Committees political
activities. In re Office of Atty Gen. of State of New York, 269 A.D.2d at 13.
C.

The Subpoena Unnecessarily Abridges the Committees First Amendment

Rights of Free Political Expression and Association.
The Commissions demands for documents reflecting the Committees internal

strategic communications violate the Committees fundamental First Amendment rights. The
First Amendment, U.S. Const. amend. I., protects the free expression and association rights of
political party organizations. Avella v. Batt, 33 A.D.3d 77, 83 (3d Dept 2006) (citing Colorado
Republican Fed. Campaign Comm. v. FEC, 518 U.S. 604, 615-16 (1996)); Tashjian v.
Republican Party of Connecticut, 479 U.S. 208, 214 (1986); Buckley, 424 U.S. at 15; California
Democratic Party v. Lungren, 919 F.Supp. 1397, 1400 (N.D. Cal. 1996) (Because individuals
exercise their free speech rights by participating in political parties, political parties also possess
9

First Amendment rights.) (citing San Francisco County Democratic Cent. Comm. v. Eu, 826
F.2d 814, 818 (9th Cir.1987), affd, 489 U.S. 214 (1989)).
Subpoenas that demand the records of a political organization tread[] on the right
of political association which is protected by the 1st Amendment. Kalkstein II at 30. Because
of this potential interference with fundamental rights, the governments quest for information is
precluded unless it shows that there are governmental interests sufficiently important to
outweigh the possibility of infringement of 1st Amendment rights. Id. at 31 (quoting Buckley,
424 U.S. at 66); see also Nicholson v. State Commn on Judicial Conduct, 50 N.Y.2d 597, 607
(1980) (A proper analysis of interference with First Amendment rights calls for examination
of the degree of interference with the First Amendment interests, the strength of the
governmental interest justifying the restriction and the means chosen to prevent the asserted
evil). The Commissions Subpoena should be quashed because the degree of interference with
the Committees First Amendment rights outweighs the slight interest, if any, that the
Commission may have in the vast array of internal Committee documents and communications
sought by the Subpoena. This is especially so in light of the fact that there is no allegation of
unlawful conduct by the Committee.
As noted above, the Commissions broad Subpoena requests potentially cover all
of the Committees paper and electronic documents and communications over a nearly two-year
period. In particular, the Subpoenas request for Documents and Communications relating to
the 2012 New York State Senate elections would compel the Committee to produce its most
sensitive documents and communications related to political strategies, goals, and plans during
an election year. These documents and communications contain internal deliberations related to
the Committees public activities, including public advertisements, issue-based advocacy, and

10

other political expenditures. A separate Subpoena request specifically demands all Documents
and Communications involving the production or proposed production of any media materials,
including television or print advertisements or mailers . Such media materials are the core
means of political expression for a modern political party. The Commissions demands therefore
strike at the very heart of the First Amendments protections for political speech and association.
As the United States Supreme Court has emphasized:
A political partys independent expression not only reflects its
members views about the philosophical and governmental matters
that bind them together, it also seeks to convince others to join
those members in a practical democratic task, the task of creating a
government that voters can instruct and hold responsible for
subsequent success or failure. The independent expression of a
political partys views is core First Amendment activity no less
than is the independent expression of individuals, candidates, or
other political committees.
Colorado Republican Fed. Campaign Comm., 518 U.S. at 615616 (quoted in Batt, 33 A.D. 3d
at 83).
If the Committee is required to turn over to the Commission all of its documents
and communications related to the 2012 election, as well as all of its documents and
communications related to the Committees television or print advertisementstwo of several
far-reaching requeststhe Committees exercise of its right to free political expression and
association, and that of other political party committees in New York State, would be chilled.
See Perry v. Schwarzenegger, 591 F.3d 1147, 1162 (9th Cir. 2010) (stating that the court had
little difficulty concluding that disclosure of internal campaign communications could have a
chilling effect on the exercise of protected activities, because disclosure of such information
can have a deterrent effect on participation in campaigns and can have a deterrent effect on the
free flow of information within campaigns, which is [i]mplicit in the right to associate with
others to advance ones shared political beliefs); FEC v. Machinists Non-Partisan Political
11

League, 655 F.2d 380, 388 (D.C. Cir. 1981) (release of such information to the government
carries with it a real potential for chilling the free exercise of political speech and association
guarded by the first amendment). Exposing sensitive political strategies related to state races,
as well as the Committees private discussions on the strengths and weaknesses of particular
candidates or political issues, would discourage political party committees from engaging in free
internal discussions in the future.
In contrast to the high degree of interference with the Committees First
Amendment interests, the Commissions interest in collecting the Committees internal
communications and records is slight. There is no factual basis for the Commissions demands,
nor are there any allegations of unlawful activity by the Committee. When such [First
Amendment] concerns appear, an administrative agency is not automatically entitled to obtain all
material that may in some way be relevant to a proper investigation. Rather, where the disclosure
sought will compromise the privacy of individual political associations, and hence risks a
chilling of unencumbered associational choices, the agency must make some showing of need for
the material sought beyond its mere relevance to a proper investigation. FEC v. Larouche
Campaign, 817 F.2d 233, 234 -235 (2d Cir. 1987). While the Commission may disapprove of
the fact that New York law allows political party committees to operate housekeeping accounts
that are not subject to contribution limits, disapproval of existing law is not an adequate basis for
intruding deeply into the most sensitive political communications of a political party.
In addition to lacking a sufficient interest in the requested documents and
communications, it is apparent from the sheer breadth of the Subpoena that the Commission has
not attempted to employ[] means closely drawn to avoid unnecessary abridgment of
associational freedoms. Buckley, 424 U.S. at 25. In adopting and fine-tuning New Yorks

12

campaign finance disclosure laws, the State has previously weighed its interest in preventing
corruption against the need for compelled disclosure of political activities. It has struck a careful
legislative balance, under which political party committees must report all receipts and
expenditures of their housekeeping accounts to the SBOE, but need not disclose their internal
deliberations. The Commissions Subpoena would upset this balance by compelling production
of a political party committees most sensitive, internal political communications and records
without due cause. See Kalkstein I, at 168, 171-72 (committees purpose of determining
whether existing election, ethics and related laws and regulations relating to the activities of
[the subpoena target] are adequate to protect the public interest was fully satisfied by the
petitioners furnishing respondents the names of contributors, the respective amounts
contributed, and where and for what such contributions were spent).
Although a quarter century ago, a court did enforce a subpoena for housekeeping
account documents against the New York Republican State Committee, rejecting First
Amendment objections, that case is distinguishable in several significant respects. New York
Republican State Comm. v. New York State Commn on Govt Integrity, 138 Misc. 2d 790 (Sup.
Ct. N.Y. Co. 1988), affd,140 A.D.2d 1014 (1st Dept 1988).
First, in that case, in which the New York State Commission on Government
Integrity requested records of the party committees housekeeping account receipts and
expenditures, the subpoena was limited to those records. The Court noted that it fail[ed] to see
how limited disclosure of the petitioners housekeeping finances will have a chilling effect on
any persons First Amendment rights, in light of the disclosure requirements already in effect
pursuant to Election Law Art. 14. Id. at 798 (emphasis added). The Subpoena at issue in this

13

case, in contrast, sweeps far more broadly and includes demands for internal and external
communications regarding the entire 2012 election.
Second, at the time the New York Republican State Committee case was decided,
New York States campaign finance law did not yet require disclosure of housekeeping account
receipts and expenditures. Today, housekeeping accounts are subject to detailed reporting
requirements. See N.Y. Elec. Law 14-102, 14-124(3) (2012) (exempting housekeeping
accounts from contribution and receipt limits, but not reporting requirements); 1988 N.Y. Sess.
Law Serv. 71 (McKinney) (amending the financial disclosure law to remove the disclosure
exception for housekeeping accounts). In amending its campaign finance law, the State has now
specifically addressed the role of housekeeping accounts and struck a balance between the need
to require disclosure of housekeeping account financial transactions and the countervailing need
to avoid undue intrusion into the internal activities and deliberations of a political party
committee. Unlike the subpoena at issue in New York Republican State Committee, the
Subpoena here would compel disclosure that the State expressly chose not to require when it
adopted its housekeeping account disclosure requirements. Moreover, because housekeeping
accounts are already required to disclose publicly from whom they raise funds and to whom they
make expenditures, the Commission does not now have the same interest, claimed by the
Commission in New York Republican State Committee, in obtaining discovery to investigate the
use of housekeeping accounts. Detailed information concerning housekeeping account receipts
and expenditures is readily available to the Commission from public sources.
For all of these reasons, the Subpoena will cause significant and unwarranted
interference with the Committees free speech and association rights and should be quashed, and
a protective order issued stating that the Committee need not produce the materials.

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D.

The Subpoena is Tainted by Impermissible Partisan Bias.

Political parties are embraced by the protections of the Fourteenth Amendment,

U.S Const. amend. XIV, 1, see, e.g., Green Party of Connecticut v. Garfield, 616 F.3d 213,
224-228 (2d Cir. 2010), and are likewise guaranteed fair treatment under the law by the New
York State constitution, see, e.g., Madole v. Barnes, 20 N.Y.2d 169, 173 (1967); N.Y. Const. art.
I, 6; N.Y. Const. art. I, 11; see also Golden v. Clark, 76 N.Y.2d 618, 624 (1990) (noting that
the New York State Constitutions equal protection guarantee is as broad in its coverage as that
of the Fourteenth Amendment).
The essence of the right to equal protection of the laws is that all persons
similarly situated be treated alike. Madole, 20 N.Y.2d at 173 (quoting Myer v. Myer, 271 A.D.
465, 472 (1st Dept 1946), affd, 296 N.Y. 979, 73 N.E.2d 562 (1947)). In other words, the
Fourteenth Amendments Equal Protection clause generally prohibits state governments from
treating groups differently based on arbitrary or irrational distinctions. See, e.g., City of
Cleburne v. Cleburne Living Center, 473 U.S. 432, 446-47 (1985). Discrimination on the basis
of political association is generally invidious. See Williams v. Rhodes, 393 U.S. 23, 39 (1968)
(Douglas, J., concurring). Furthermore, the Due Process clause prohibits conduct that is so
outrageously arbitrary as to constitute a gross abuse of governmental authority. Harlen
Associates v. Inc. Vill. of Mineola, 273 F.3d 494, 505 (2d Cir. 2001) (quoting Natale v. Town of
Ridgefield, 170 F.3d 258, 263 (2d Cir. 1999)).
These principles prohibit the government from selective enforcement of the law.
See, e.g., Yick Wo v. Hopkins, 118 U.S. 356 (1886). It is the purpose of the equal protection
clause of the Fourteenth Amendment to secure every person within the States jurisdiction
against intentional and arbitrary discrimination, whether occasioned by express terms of a statute
or by its improper execution through duly constituted agents. Vill. of Willowbrook v. Olech,
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528 U.S. 562, 564 (2000) (internal quotation and modifications omitted). To demonstrate
unconstitutional disparate treatment, a party must show either (1) that [it was] treated differently
from other similarly situated individuals, and (2) that such differential treatment was based on
impermissible considerations such as intent to inhibit or punish the exercise of constitutional
rights, or malicious or bad faith intent to injure a person, see Harlen Associates, 273 F. 3d at
499 (internal quotations omitted), or that no rational person could regard the circumstances of
the plaintiff to differ from those of a comparator to a degree that would justify the differential
treatment on the basis of a legitimate government policy and the similarity in circumstances
and difference in treatment are sufficient to exclude the possibility that the defendants acted on
the basis of a mistake. Clubside, Inc. v. Valentin, 468 F.3d 144, 159 (2d Cir. 2006) (internal
quotation omitted).
As the New York Court of Appeals has stated, [p]roof of intent may appear
from a convincing showing of a grossly disproportionate incidence of nonenforcement against
others similarly situated in all relevant respects save for that which furnishes the basis of the
claimed discrimination. 303 W. 42nd St. Corp. v. Klein, 46 N.Y.2d 686, 695 (1979). This is
necessarily the case because [o]rdinarily . . . a strong inference of illicit motive will be all that
can be expected because admission of intentional discrimination is likely to be rare; law
enforcement officials are unlikely to avow that their intent was to practice constitutionally
proscribed discrimination. Id. Indeed, the grosser the disparity of enforcement and the
greater the similarity between those prosecuted and those not prosecutedthe stronger will be
the inference of illicit motive, since conscious discrimination may then stand out as the only
reasonable explanation for the pattern of enforcement. Id. And because the importance of the
right to be free from impermissible selective enforcement must be of more than theoretical value,

16

the burden of demonstrating a violation, albeit heavy, must not be so heavy as to preclude any
realistic opportunity for success. Id.
These tenets regarding selective enforcement are equally applicable here, where
there is a selective exercise of the governments investigative power. Media accounts of the
Commissions investigation raise substantial concerns that its demand for documents is
politically motivated and violates the Equal Protection and Due Process Clauses of the
Fourteenth Amendment and the New York State Constitution. The news reports detail several
incidents suggesting that the Committee is receiving disfavored treatment relative to other
similarly situated political party committees. 4
According to media reports, the Executive has exerted significant influence over
the conduct of the Commissions investigation, including ordering the Commission to drop plans
to subpoena documents from the New York State Democratic Committee, 5 the party committee
with which the Executive is most intimately involved, and from other interests connected to the
Executive. 6 Indeed, it appears that the Commission initially sought documents from the
Committee and the New York State Independence Party, 7 and possibly the New York State
Democratic Senate Campaign Committee, 8 but reportedly agreed to subpoena the New York
State Democratic Committee only after the Executives involvement in the Commissions

4

See, e.g., Cuomos anti-corruption panel stops at investigating his own Democratic party,
supra n.2; Cuomos Office Is Said to Rein In Ethics Board He Created, supra n.1.
5

See Cuomos anti-corruption panel stops at investigating his own Democratic party, supra n.2.

See Kenneth Lovett, Gov. Cuomo leans on independent corruption panel, N.Y. Daily News,
Sept. 30, 2013, http://www.nydailynews.com/news/politics/gov-cuomo-leans-independent-
corruption-panel-article-1.1471258.
7

See Cuomos Office Is Said to Rein In Ethics Board He Created, supra n.1.

Cuomos anti-corruption panel stops at investigating his own Democratic party, supra n.2.

17

operations became a matter of public controversy. 9 Moreover, as of this date, there is no public
evidence that the Commission has in fact issued a subpoena to the New York State Democratic
Committee. These media reports suggest that the Commissions Subpoena to the Committee
might not have been issued in good faith. They also raise serious questions concerning whether
the Commission intends to prosecute all of its outstanding subpoenas with equal vigor. Compare
New York State Commn on Govt Integrity, 138 Misc. 2d 790 (where[i]dentical subpoenas
were issued to five Democratic Party committees, there was no merit to the petitioners claim
that the subpoenas were issued in bad faith as a means to harass the Republican Party).
The Executives undue influence over the Commission, and the Commissions
delay in issuing a subpoena to the key Democratic Party committee with which the Executive is
closely involved, create a strong inference that the Subpoena reflects an arbitrary exercise of
government power, and one in which the Commission has treated the Committee differently than
other similarly-situated entities based on irrational, arbitrary, or impermissible motives. See 303
W. 42nd St. Corp., 46 N.Y.2d at 695; Harlen Associates, 273 F. 3d at 499. The Subpoena thus
violates the Committees Equal Protection and Due Process rights, and for this reason too should
be quashed.

See Panel to Investigate State Democratic Party, supra n.3.

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CONCLUSION
For the foregoing reasons, the New York State Senate Republican Campaign
Committee requests that the Court quash Respondents subpoena duces tecum dated September
20, 2013 and issue a protective order directing that the Committee need not produce the materials
requested by it.

Dated: October 29, 2013

Washington, DC

Respectfully,

COVINGTON & BURLING LLP

By: /s/ Michael Chertoff_______

Michael Chertoff
Robert K. Kelner
1201 Pennsylvania Avenue
Washington, DC 10004
(202) 662-6000

Jennifer Farina
620 Eighth Avenue
New York, NY 10018
(212) 841-1140

Attorneys for Petitioner New York State Senate

Republican Campaign Committee

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