Under the First Amendment, a citizen has a right to make campaign contributions to those running for elective offices. But does a person running for elective office have a First Amendment right to receive campaign contributions? That very interesting issue was raised in Dean v. Blumenthal, 07-1986-cv (2d Cir. Aug 11, 2009).
In Dean, a candidate for Connecticut Attorney General challenged a Connecticut law that prohibited candidates from receiving campaign contributions from law firms that did business with the state. A-ha! It was not a law that prevented such contributions. Instead, the incumbent Attorney General, Richard Blumenthal, inserted the following language into contracts with outside law firms:
No partner, owner, director and/or employee, with managerial and/or discretionaryauthority, of the COUNSEL may directly or indirectly make financial donations toany candidate for the Office of the Attorney General of the State of Connecticutduring the course of this agreement.Blumenthal would defend that language, claiming it was designed to designed to prohibit the appearance of pay-for-play. Yet like most restrictions on campaign contributions, it favored the incumbent-Blumenthal. Already in office, Blumenthal had a ready campaign machine. It is challengers who need money most dearly. Blumenthal's policy cut off challengers at the knees - all in the "public interest," of course.
Dean sued under 42 U.S.C. 1983 and the Connecticut state constitution, alleging violations of her First and Fourteenth Amendment rights. After Dean filed suit, Blumenthal suspended operation of the contribution restriction.
In an interesting twist, the Second Circuit dismissed Dean's lawsuit as moot. How so? Didn't we all learn from the late Charles Alan Wright's Federal Courts that voluntary cessation of challenged conduct is an exception to the mootness doctrine? Of course we did! Who can forget Friends ofthe Earth, Inc. v. Laidlaw Environmental Services? "[V]oluntary cessation of achallenged practice does not deprive a federal court of itspower to determine the legality of the practice." Id., 528 U.S.167, 189 (2000) (quotation marks omitted). See also Padilla v. Hanft, 547 U.S. 1062 (2006) (Ginsburg, J., dissentingfrom denial of petition for certiorari) (“A party’s voluntarycessation does not make a case less capable ofrepetition or less evasive of review.”).
Attorney General Blumethal said that he wouldn't re-insert the contractual language. That was enough for the panel. "But the Attorney General’s claim is bolstered by his voluntary practice of notenforcing the contractual prohibition over the past six years and of deleting the contractualprohibition over two years ago." Slip op. at *7. That no consent decree was ordered, and thus there is no legal recourse to stop him did not move the panel.
We were thus deprived of an answer to the question presented in the Post's title. Don't blame me. It was the Second Circuit that played the tease!