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Opinions – 12/5/11: 4th U.S. Circuit Court of Appeals

Election Law

Campaign contributions prohibition

BOTTOM LINE: District court’s denial of lobbyist’s constitutional challenge to North Carolina’s statute limiting campaign contributions to public officials affirmed, because the statute, which prohibits only contributions with monetary value, was properly tailored to address political corruption and did not otherwise impinge lobbyist’s First Amendment right to support political candidates.

CASE: Preston v. Leake, et al., No. 10-2294 (decided Nov. 7, 2011) (Judges NIEMEYER, King & Hamilton). RecordFax No. 11-1107-61, 25 pages.

COUNSEL: Thomas Hamilton Segars, Ellis & Winters, LLP, Raleigh, NC, for Appellant. Susan Kelly Nichols, North Carolina Department of Justice, Raleigh, NC, for Appellees.

FACTS: In 2006, North Carolina enacted the Campaign Contributions Prohibition, which prohibited registered lobbyists from making contributions to candidates for the North Carolina General Assembly and the Council of State. 2006 N.C. Sess. Laws 201; N.C. Gen.Stat. §163–278.13C(a). The Campaign Contributions Prohibition, as well as the other provisions of 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 exercise their authority honestly and fairly, free from impropriety, threats, favoritism, and undue influence.” 2006 N.C. Sess. Laws 201.

The prohibition provides in relevant part: “No lobbyist may make a contribution…to a candidate or candidate campaign committee…when that candidate…[i]s a legislator…[or] a public servant. §163–278.13C(a). The statute defines “contribution” broadly, considering “anything of value whatsoever” to be a contribution, excluding specifically volunteer services and independent expenditures. But an individual may not claim to be making an independent expenditure if it is “coordinated with a candidate” or other campaign entity. If the individual does coordinate expenditures, they become contributions. See id. A lobbyist may also make recommendations to third parties regarding contributions to specific candidates as long as the lobbyist does not act as the collection agent or “bundler” for those contributions. §163–278.13C(b).

The North Carolina State Board of Elections (Board) enforces the prohibition by, inter alia, policing the boundary between what constitutes a “contribution” and what constitutes an “independent expenditure,” as defined by the statute, determining on a case-by-case basis the extent to which there is “coordination” between the lobbyist’s expenditures and a candidate or campaign. To assist it in this effort, the Board sought “clear instruction” from the General Assembly regarding the proper definition of “coordination,” and, in response, the General Assembly enacted an amendment to the prohibition defining “coordination” as “in concert or cooperation with, or at the request or suggestion of.” 2010 N.C. Sess. Laws 170, codified at N.C. Gen.Stat. § 163–278.6(6h) (2011).

Sarah Preston, a registered lobbyist, commenced an action against the Board, asserting, inter alia, that the prohibition is facially unconstitutional as overly broad because it provides no limiting exceptions; it does not leave open alternative means for lobbyists to participate in First Amendment activities; and it is not tailored in any degree to serve its stated government interest of avoiding corruption or the appearance of corruption. After determining that “closely drawn” scrutiny was to apply to its evaluation of the statute, the district court entered summary judgment in favor of the Board, upholding the constitutionality of the Campaign Contributions Prohibition.

Preston appealed to the 4th Circuit, which affirmed.

LAW: While almost all of the terms in the prohibition are defined by the statute, the critical term, which gives the statute its purportedly unconstitutional breadth, is the term “contribution.” A contribution includes “anything of value whatsoever,” and the ban is not temporally limited, nor is there a de minimis exception. Id. §163–278.6(6). While there is an exception for volunteered services, the term contribution includes expenses incurred even while volunteering if the expenditures are “coordinated” with the campaign. The statute defines “coordination” to mean “in concert or cooperation with, or at the request or suggestion of” the campaign. Id. §163–278.6(6h). If the expenses are not incurred in cooperation with the campaign, they are excluded from the definition of contribution.

Preston focused on the fact that the statute prohibits all contributions, regardless of their monetary value, and also, for this reason, creates confusion in determining what expenditures, however small, she may make in coordination with a campaign. She argued that de minimis contributions do not corrupt and North Carolina has not provided evidence to suggest that they do. She relied heavily on Randall v. Sorrell, 548 U.S. 230 (2006), which found broadly applicable limits to campaign contributions unconstitutional.

In Randall, the Supreme Court pointed out that the failure to exclude expenses of volunteers incurred for travel and other minimal expenses from the definition of “contribution” could burden volunteers’ efforts on behalf of a campaign. 548 U.S. at 259. The court also found suspect the broad definition of prohibited contributions, which included all expenditures “intentionally facilitated by, solicited by, or approved by” the candidate. Id. at 238. Thus, the court observed, the combination of prohibiting a broad range of expenses incurred by volunteers and defining “contribution” to include all coordinated expenditures would burden a campaign and make it “difficult for individuals to associate” with their chosen candidate. See id. at 260.

These observations, however, were in a context that applied much more broadly and directly to volunteers’ efforts to support campaigns, potentially “imped[ing] a campaign’s ability effectively to use volunteers.” Id. at 260. But the court’s concern over the statute’s impact on volunteers arose because the low contribution limit applied to all contributions by all individuals, political organizations, and political parties.

The meaningful distinction for purposes of this case is that the Campaign Contributions Prohibition is limited to lobbyists, a small class of people who might also be volunteers. See Green Party of Conn. v. Garfield, 616 F.3d 189, 199 (2d Cir.2010) (rejecting the applicability of Randall to a ban limited to contractors because “Randall addressed general contribution limits that applied to all citizens”). And even with respect to lobbyists, the Campaign Contributions Prohibition allows volunteering, as it only prohibits volunteer expenses made in coordination with the candidate or the campaign.

At bottom, the Campaign Contributions Prohibition is designed to prohibit only contributions having monetary value and then only when made by a lobbyist to a candidate. The lobbyist, such as Preston, is left free to pursue any other First Amendment activity to express actual or symbolic support of a candidate, so long as that activity does not involve making a contribution having monetary value to the candidate or the candidate’s campaign. This prohibition, therefore, is appropriately tailored to address North Carolina’s recent problems with corruption and to reassure its citizens that its politicians are acting on their behalf and not on behalf of the highest bidder.

Accordingly, the judgment of the district court was affirmed.

Immigration Law

Asylum

BOTTOM LINE: Judgment of the Board of Immigration Appeals, which affirmed alien’s denial of asylum based on perceived inconsistencies in her application, vacated because the Board committed several errors in reviewing and assessing copious evidence, including testimony and documents, submitted in support of asylum application.

CASE: Tassi v. Holder, No. 10-2194 (decided Nov. 7, 2011) (Judges KING, Niemeyer & Hamilton). RecordFax No. 11-1107-60, 25 pages.

COUNSEL: Danielle L.C. Beach-Oswald, BeachOswald Immigration Law Associates, PC, Washington, for Petitioner. Franklin M. Johnson, Jr., United States Department of Justice, Washington, for Respondent.

FACTS: Coretha Tassi, a native of Cameroon, entered the US on a 30-day visitor visa on Feb. 22, 2002. She overstayed her visa and filed an asylum application on March 28, 2002. On May 29, 2002, the Immigration and Naturalization Service (INS) referred her application to an immigration judge (IJ). Tassi conceded removability, but sought relief through asylum, withholding of removal, and protection under the UN Convention Against Torture (CAT) (collectively, the “asylum application”).

According to the evidence, Tassi, while a university student in Cameroon in 1994, worked for the student newspaper and circulated information about the Southern Cameroon independence movement. Tassi testified that she belonged to various political youth groups. She stated that she was arrested three times because of her involvement with the student newspaper and her political affiliations. Upon these arrests, she was stripped, beaten, interrogated and detained for days.

According to her husband, Reeves Ade, and Tassi’s mother-in-law, Anastasia Ade, when Tassi was released, she had a gash on her left check and bruises on her body, so they rushed her to the hospital. Upon her admission to the hospital, Tassi’s doctors completed a “Medico–Legal Certificate” on government letterhead, also dated Jan. 20, 2000, stating that her injuries were “presumed to be due to police battery.”

In October 2001, Tassi and Reeves received a tip from a policeman that Tassi’s name was on a list of persons who were to be arrested. They promptly fled and remained in hiding until Tassi’s father made arrangements to get Tassi out of Cameroon. A family friend who was travelling to the US on business agreed that Tassi could accompany him, posing as his wife. They obtained a visa and passport for Tassi at the American embassy, listing her surname as Fomuki. Reeves testified that after Tassi had left, the Cameroonian authorities came to their home looking for her. Reeves explained that the police also searched the house, closed his stores, and threatened to put him in jail. Consequently, Reeves also fled to the United States, using a fake passport, and, according to Tassi, arrived in September 2002.

In addition to her own testimony and that of Reeves and Anastasia Ade, Tassi presented the evidence of Justice Aloysius Mbu, whom the IJ accepted as an expert on human rights and politics in Cameroon. Justice Mbu had reviewed Tassi’s asylum application and affidavit, and explained that political activists, like Tassi, are routinely persecuted in Cameroon.

Tassi also submitted several documents in support of her asylum application.

On Jan. 2, 2009, the IJ denied the asylum application, explaining that Tassi’s testimony contained numerous internal inconsistencies that cast doubt on her overall credibility. Tassi appealed to the Board of Immigration Appeals (BIA), which adopted and affirmed the IJ’s decision. Specifically, the BIA concluded that the IJ’s adverse credibility findings were not clearly erroneous and were supported by specific and cogent reasons.

Tassi appealed to the 4th Circuit, which vacated the decision of the BIA and remanded for further proceedings.

LAW: To establish eligibility for asylum, an applicant bears the burden of showing either past persecution or a well-founded fear of future persecution “on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. §1101(a)(42)(A). If the applicant is able to demonstrate past persecution, she is “presumed to have a well-founded fear of persecution on the basis of the original claim.” 8 C.F.R. §208.13(b)(1).

To qualify for withholding of removal, an applicant “must establish that, if removed, a clear probability exists that h[er] freedom or life would be threatened on account of a protected ground.” Jian Tao Lin v. Holder, 611 F.3d 228, 236 (4th Cir.2010). “Whereas both asylum and withholding of removal require an applicant’s fear of persecution to be based on an enumerated ground, protection under the CAT is available for those who can prove that, whatever the motivation, it is more likely than not that he or she would be tortured if removed to the proposed country of removal.” Id.

Here, the IJ committed multiple legal and factual errors. First, the IJ erroneously (1) applied the rules of evidence; (2) suggested that corroborative evidence requires further corroboration; and (3) discredited documents as unauthenticated under the immigration regulations without providing Tassi an opportunity to authenticate them by other means and without otherwise providing sound, cogent reasons for rejecting them. Of course, an IJ’s errors of law necessarily constitute an abuse of discretion. See Menghesha v. Gonzales, 450 F.3d 142, 147 (4th Cir.2006). Second, several of the IJ’s factual findings were not supported by substantial evidence, but by inaccurate perceptions of the record or by speculation and assumption. The IJ’s legal and factual errors, in turn, thwarted the necessary weighing of Tassi’s corroborative evidence against the adverse credibility findings. For its part, the BIA erred in failing to recognize the IJ’s multiple errors concerning important aspects of Tassi’s claims, rendering the BIA Order manifestly contrary to law and an abuse of discretion. See Jian Tao Lin, 611 F.3d at 235.

Accordingly, the 4th Circuit granted Tassi’s petition for review, vacated the BIA Order, and remanded for further proceedings.