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Contribution Prohibition is Lawful Limit on Free Speech Rights

By Robyn Hagan Cain on November 09, 2011 | Last updated on March 21, 2019

The Fourth Circuit Court of Appeals ruled this week that lobbyists have no place in North Carolina state elections.

Sarah Preston, a North Carolina registered lobbyist, sued in 2008 to challenge North Carolina’s Campaign Contributions Prohibition, claiming that the law violated her freedom of association and free speech rights.

In an opinion issued Monday, the Fourth Circuit upheld the statute, which prohibits lobbyists from contributing to the campaign of any candidate for the North Carolina General Assembly or the Council of State.

North Carolina enacted the Campaign Contributions Prohibition in 2006, to address a "crisis of confidence" in the state government. The law prohibits registered lobbyists from making contributions to candidates for state elected office.

The State Government Ethics Act, of which the Campaign Contributions Prohibition is a part, was enacted to ensure that elected and appointed state agency officials fulfill their obligations free from impropriety, favoritism, and undue influence."

Preston, who claimed that she wanted to make campaign contributions of no more than $25, argued that the Campaign Contributions Prohibition is unconstitutional, both facially and as it applied to her, because it infringes on free speech rights and free of associations under the First and Fourteenth Amendments. Preston said that the prohibition was overly restrictive because it applied year-round, regardless of whether the lobbyist had any dealings with the candidate in question.

While she acknowledged that it was appropriate to apply "closely drawn" scrutiny when evaluating campaign contribution limits, Preston asserted that a complete ban on campaign contributions "restricts direct speech rights of would-be contributors that lie at the core of political expression" and demands strict scrutiny under Citizens United v. Federal Election Commission.

The Fourth Circuit Court of Appeals disagreed. Applying the closely drawn standard of scrutiny, the court found that the statute served the important governmental interest of avoiding corruption and the appearance of corruption while leaving open other sufficient means for political expression by lobbyists.

The Fourth Circuit concluded that the statute was constitutional both on its face and as applied to Preston.

It seems appropriate that the Fourth Circuit issued this opinion on the eve of Election Day. Do you agree with this decision? More importantly, do you think the Supreme Court will agree? Preston is a lobbyist for the ACLU of North Carolina, so we suspect that she has the organization's backing for a High Court appeal.

How would SCOTUS feel about the North Carolina's closely drawn restriction on free speech rights?

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