21-2518 (L) Upstate Jobs Party v. Kosinksi

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

August Term 2022

(Argued: Wednesday May 10, 2023 Decided: July 3, 2024)

Nos. 21-2518, 21-2557

––––––––––––––––––––––––––––––––––––

UPSTATE JOBS PARTY, MARTIN BABINEC, JOHN BULLIS,

Plaintiffs-Appellees-Cross-Appellants,

-v.-

PETER S. KOSINSKI, NEW YORK STATE BOARD OF ELECTIONS CO-CHAIR COMMISSIONER, IN HIS OFFICIAL CAPACITY, HENRY T. BERGER, NEW YORK STATE BOARD OF ELECTIONS CO-CHAIR COMMISSIONER, IN HIS OFFICIAL CAPACITY, ESSMA BAGNUOLA, NEW YORK STATE BOARD OF ELECTIONS COMMISSIONER, IN HER OFFICIAL CAPACITY, ANTHONY J. CASALE, NEW YORK STATE BOARD OF ELECTIONS COMMISSIONER, IN HIS OFFICIAL CAPACITY,

Defendants-Appellants-Cross-Appellees. *

––––––––––––––––––––––––––––––––––––

Before: LIVINGSTON, Chief Judge, RAGGI, and NARDINI, Circuit Judges.

The Clerk of Court is respectfully directed to amend the caption to conform to *

the above.

1 Plaintiffs-Appellees-Cross-Appellants Upstate Jobs Party (“Upstate Jobs”) and two of its leaders (collectively, “UJP”) sued Defendants-Appellants-Cross- Appellees, Commissioners of the New York State Board of Elections (collectively, the “State Board”), over campaign finance regulations that allow parties—which, by definition, have demonstrated a certain level of statewide support—to accept and transfer campaign contributions in ways that non-party candidate- nominating organizations (i.e., “independent bodies”) cannot. Upstate Jobs, an independent body, claims that it is similarly situated to parties because both itself and parties nominate candidates that compete in the same elections. As such, UJP contends that New York’s preferential treatment of parties violates the Fourteenth Amendment right to equal protection. Upstate Jobs and Martin Babinec, its founder, also assert First Amendment violations, alleging that New York’s campaign finance rules distinguishing between parties and independent bodies are not closely drawn to a sufficient state interest in preventing corruption or the appearance thereof.

On cross-motions for summary judgment, the United States District Court for the Northern District of New York (Suddaby, C.J.) determined that differences in contribution limits applicable to parties and independent bodies violate the Fourteenth and the First Amendments. The district court separately determined that allowing parties but not independent bodies to maintain so-called “housekeeping accounts” did not violate either amendment. UJP and the State Board both appealed. Because parties and independent bodies are not similarly situated, we REVERSE in part and AFFIRM in part the district court’s judgment as to the Fourteenth Amendment claims. And, because the state’s contribution limits and housekeeping account exception are closely drawn to serve the state’s anticorruption interests, we REVERSE in part and AFFIRM in part the district court’s judgment as to the First Amendment claims.

FOR PLAINTIFFS-APPELLEES-CROSS-APPELLANTS: SHAWN TOOMEY SHEEHY (Edward Wenger & Phillip Michael Gordon, on the brief), Holtzman Vogel Baran Torchinsky & Josefiak, PLLC, Haymarket, VA; Michael Burger, Santiago Burger LLP, Rochester, NY, on the brief.

2 FOR DEFENDANTS-APPELLANTS-CROSS-APPELLEES: SARAH L. ROSENBLUTH, Assistant Solicitor General (Jeffrey W. Lang, Deputy Solicitor General, on the brief), for Letitia James, Attorney General of the State of New York, Albany, NY.

DEBRA ANN LIVINGSTON, Chief Judge:

In this appeal, a political organization known as Upstate Jobs Party

(“Upstate Jobs”), as well as its founder, Martin Babinec, and its Chairman and

Executive Director, John Bullis, seek declaratory and injunctive relief, alleging that

various New York election campaign finance laws violate the First and Fourteenth

Amendments. Specifically, Upstate Jobs and its leaders (collectively, “UJP”)

challenge New York campaign finance laws that distinguish between political

parties, which must demonstrate a particular level of statewide support to qualify

as such, and independent bodies, which are defined as all candidate-nominating

groups that do not qualify as political parties. Due to this statutory distinction,

independent bodies such as Upstate Jobs can neither accept individual

contributions as large as those that parties can accept, nor transfer as much money

to their candidates as parties can transfer. In addition, New York law provides a

“housekeeping account” exception to contribution limits, allowing parties, but not

3 independent bodies, to accept unlimited contributions for maintaining permanent

headquarters, employing staff, and other activities that are not for the express

purpose of promoting candidates. According to UJP, such unequal treatment

violates the Fourteenth Amendment’s Equal Protection Clause, as well as the First

Amendment rights of Upstate Jobs and its supporters.

The district court determined that the contribution limit distinctions were

supported by New York’s legitimate interest in stanching corruption but were

neither closely drawn nor the least restrictive means of achieving this aim. Thus,

the district court granted UJP’s requested relief as to contribution limits under

both the First Amendment and the Fourteenth Amendment. However, after

determining that the housekeeping exception was closely drawn and the least

restrictive means of achieving the state’s anticorruption goals, the district court

denied UJP’s requested relief as to housekeeping accounts under both the First

Amendment and the Fourteenth Amendment.

The district court erred in multiple respects. First, UJP’s Fourteenth

Amendment challenges—as to both the contribution limits and the housekeeping

exception—falter at the threshold. Political parties and independent bodies are

not similarly situated merely because they may both nominate candidates to run

4 in the same election. Accordingly, UJP has not shown an equal protection

violation. Second, as to the First Amendment challenges, New York has

sufficiently demonstrated that its contribution limits and the absence of a

housekeeping account exception for independent bodies are supported by a

substantial anticorruption objective and are closely drawn to serve that goal. As

a result, the state’s campaign finance laws withstand all constitutional challenges

raised below, and we AFFIRM in part and REVERSE in part accordingly.

BACKGROUND

I. New York Election Law

Under New York law, a political organization becomes a “party” when its

gubernatorial and presidential candidates in the last preceding election received

the greater of 130,000 votes or two percent of the total votes cast.

(3). 1 All other organizations that nominate electoral candidates but do not

1 The definition of “party” reads, in full: [A]ny political organization which, excluding blank and void ballots, at the last preceding election for governor received, at least two percent of the total votes cast for its candidate for governor, or one hundred thirty thousand votes, whichever is greater, in the year in which a governor is elected and at least two percent of the total votes cast for its candidate for president, or one hundred thirty thousand votes, whichever is greater, in a year when a president is elected.

5 qualify as parties are “independent bodies.”

§ 1-104(12) (defining

“independent body” as “any organization or group of voters which nominates a

candidate or candidates for office to be voted for at an election, and which is not a

party as herein provided”). Typically, an independent body functions as the

“alter ego of a candidate,” App’x 81, existing only because a candidate decided to

run as an independent. In other words, independent bodies usually lack “a

distinct identity . . . that is separate and apart from the candidate.” Id. at 82.

Thus, in broad terms, New York has enacted a regulatory scheme for political

organizations that demonstrate a baseline level of statewide support (i.e., parties)

that is distinct from campaign finance rules that apply to all other individuals and

organizations that nominate candidates for elections (i.e., independent bodies). 2

(3). 2 As of February 21, 2020—around when the parties filed their cross-motions for summary judgment below—New York recognized eight parties: Democratic, Republican, Conservative, Working Families, Green, Libertarian, Independence, and SAM. See Upstate Jobs Party v. Kosinski,

, 111 (N.D.N.Y. 2021); App’x 241. In April 2020, New York amended its party-qualification requirements, which previously conferred party status on organizations that won at least 50,000 votes, to the current requirement that the organization won the greater of 130,000 votes or two percent of the total vote in the preceding election. See SAM Party of N.Y. v. Kosinski,

, 272 (2d Cir. 2021). As of May 22, 2024, New York recognizes four parties: Democratic, Republican, Conservative, and Working Families. See N.Y. Bd. of Elections in the City of N.Y., Party Affiliation, https://www.vote.nyc/page/party-affiliation.

6 Attaining party status unlocks a suite of statutory provisions that confer

benefits and impose organizational and administrative obligations. See SAM

Party of N.Y., 987 F.3d at 271–72. A “principal privilege[] of party status is a

designated ballot line or ‘berth.’”

; see also

(4).

More relevant here, once an organization qualifies as a party, it may accept larger

contributions from individuals, see

(1), 14-114(10), make

uncapped transfers to party candidates, see

§§ 14-100(9)(2), 14-100(10), 14-

114(3), and accept unlimited contributions to housekeeping accounts for expenses

“on ordinary activities which are not for the express purpose of promoting the

candidacy of specific candidates,” see id. § 14-124(3). These benefits come with

associated burdens, including requirements to file rules concerning party

governance with the state and county boards of elections,

;

to create a state committee composed of enrolled party members elected

biannually,

§§ 2-102, 2-106; to form county committees in each of New York’s

62 counties, typically by electing two or more party members in each election

district within each county, id. § 2-104; to file information regarding the officers of

state and county committees with the state and county boards of elections, id. § 2-

112(d); to afford certain due process protections before removing party officers or

7 members, id. § 2-116; and to select nominees for election to public or party office

through specified procedures, frequently primaries, id. §§ 2-106, 6-110.

Independent bodies, on the other hand, do not enjoy designated ballot

berths; their candidates must obtain a specified number of signatures on an

independent nomination petition to gain ballot access. See id. § 6-142.

Independent bodies also must adhere to the same contribution limits that apply to

individuals, see id. § 14-114(1), and the exception that permits parties to accept

unlimited contributions to housekeeping accounts does not apply to them, see id.

§ 14-124(3). While independent bodies do not benefit from these party-specific

regulations, they also do not bear the party-specific organizational and

administrative burdens described above. And, like party supporters, the

supporters of an independent body can establish campaign finance vehicles such

as a political action committee (“PAC”) or an independent expenditure committee

(“IEC”), which may receive unlimited individual contributions subject to some

parameters. 3

3 PACs can receive unlimited individual contributions, subject to limitations on the contributions they can make to a candidate based on the limitation applicable to that candidate.

. IECs can also receive unlimited contributions from individuals and make unlimited independent expenditures but may not coordinate with a campaign and are limited in how they can expend funds.

§§ 14-100(15), 14- 107(1)(a), 14-107(4), 14-107-a. A candidate may also designate a political committee,

8 At issue in this case are two elements of New York’s campaign finance

regime that distinguish between parties and independent bodies: contribution

limits and the housekeeping account exception to those limits. As to the first,

New York law establishes different individual contribution limits for parties and

independent bodies. Parties may receive contributions up to $138,600 from an

individual annually. 9 N.Y.C.R.R. § 6214.0. 4 By contrast, contribution limits to

independent bodies “depend on how the [entity] is organized for campaign

finance purposes” and most often track the individual contribution limits for the

office the candidate seeks. See App’x 158–59. For instance, Upstate Jobs averred

in its complaint that it intended to field a gubernatorial candidate, meaning it

could only accept individual contributions up to $9,000, consistent with the

general individual contribution limit for statewide general elections. See

(1). 5 A second component of these contribution limits pertains

known as an “authorized committee,” “to receive contributions and make expenditures in support of the candidate’s campaign for such election.”

§ 14-200-a(1). 4 At the time the parties briefed this case, the individual contribution limit to parties was $117,300. This limit has since been adjusted upward to account for inflation. See

(10)(b). 5 In November 2022, after this case was fully briefed, New York launched a new public campaign financing program that extended public matching funds and lowered individual contribution limits to candidates for statewide office. See N.Y. State Pub. Campaign Fin. Bd., Public Campaign Finance Program, https://pcfb.ny.gov/program-

9 to the amount of money that parties or independent bodies can, in turn, transfer

to candidates. Under New York law, parties may transfer unlimited funds to

their candidates, whereas independent bodies may transfer funds only up to the

same contribution limits generally applicable to a particular office. See

§§ 14-

100(9)(2), 14-100(10), 14-114(3).

Second, parties enjoy an exception to contribution limits for donations

received and spent “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.” Id. at § 14-124(3). These so-called

“housekeeping” funds must be kept in a segregated bank account. Id. The

housekeeping exception does not apply to independent bodies, which must abide

by generally applicable contribution limits when allocating funds for headquarters

and staff. See id. (applying the exception only to “party committee[s]”).

II.The Upstate Jobs Party

In early 2016, Babinec campaigned for the Republican nomination in New

York’s 22nd Congressional District. Unable to garner support as a Republican,

overview. Before this new program, the maximum contribution limit to a statewide candidate, such as a gubernatorial candidate, was $47,100. 9 N.Y.C.R.R. § 6214.0;

(1).

10 Babinec launched Upstate Jobs, a new independent body, and ran under its banner

in a bid to disrupt the dominance of New York’s two-party system. Aided by

approximately sixty volunteers, Babinec obtained the requisite 3,500 signatures on

independent nominating petitions to have his name added to the ballot as the

Upstate Jobs candidate. 6 To assist his candidacy, Babinec lent his campaign

$2,990,000 of personal funds. Ultimately, Babinec lost the election, receiving

34,638 votes—12.4% of the total votes cast.

In 2017, Upstate Jobs worked to raise its profile by promoting a platform to

revitalize the upstate New York economy through the creation of middle-class

private sector jobs. By the end of that year, Upstate Jobs was formally

incorporated as Vote Upstate Jobs, Inc., a nonprofit entity organized under

§ 501(c)(4) of the Internal Revenue Code. Upstate Jobs also formed an

independent expenditure committee called the Upstate Jobs Committee, to which

Babinec contributed approximately $25,000 in 2017—all the money that the

Committee received that year.

6 For this race, the boards of elections of seven of the eight counties within the 22nd Congressional District chose to consolidate the Upstate Jobs Party ballot line with the Libertarian Party ballot line. As such, Babinec appeared on the Libertarian Party line with a notation in 3.5-point font acknowledging his affiliation with Upstate Jobs.

11 Upstate Jobs supported one candidate, Ben Walsh, for Mayor of Syracuse in

2017. Although Upstate Jobs did not make any contributions to Walsh’s

campaign, its volunteers helped him obtain the requisite number of signatures to

appear on the ballot as the Upstate Jobs candidate. 7 The Upstate Jobs Committee,

having received $25,000 in contributions that year (all from Babinec), made $22,074

in independent expenditures to support Walsh via digital media advertisements

and mailers. Walsh won the election and is now the Mayor of Syracuse.

Upstate Jobs continued its efforts throughout 2018 and 2019, holding several

public meetings and endorsing ten candidates from multiple political parties for

various offices. For one candidate, Robert Antonacci, who ran as a Republican

for State Senate in 2018, Upstate Jobs circulated enough independent nominating

petitions to secure his appearance on an Upstate Jobs ballot line, where he received

347 votes. 8 That year, Upstate Jobs received $88,000 in contributions and spent

$48,891 on consultants and other program expenses, leaving it with year-end net

assets of $39,109. Over the course of 2018 and 2019, in addition to being Upstate

7 Walsh appeared under the ballot lines for the Independence Party and the Reform Party. App’x 105. Walsh’s affiliation with the Upstate Jobs Party was marked in 3.5-point font next to his name on the Reform Party line. Id. Upstate Jobs does not appear to have nominated any candidate since Mr. 8

Antonacci.

12 Jobs’ largest donor, Mr. Babinec contributed $240,898 to the Upstate Jobs

Committee—essentially all of its contributions—which the committee spent on

independent expenditures to support the candidates Upstate Jobs had endorsed.

UJP contends that, if granted relief in this action, Babinec will contribute the party-

level maximum to Upstate Jobs, Upstate Jobs will transfer sums of money to its

candidates without regard for individual contribution limits, and Upstate Jobs will

fundraise for a housekeeping account to obtain a permanent office space and to

hire full-time employees.

Since its inception in 2016, Upstate Jobs’ Board of Directors has consisted of

three members: Babinec, Bullis, and Paul Allen. From 2017 through August 2019,

these same individuals comprised the Board of Directors of the Upstate Jobs

Committee. At present, Babinec is the only “overlapping board member, serving

on the boards of both Upstate Jobs Party and Upstate Jobs Committee.” App’x

228. Notwithstanding the multi-year period during which the entities shared the

same board members, Upstate Jobs represents that the entities maintain distinct

decision-making processes and that the Upstate Jobs Committee decides on

independent expenditures consistent with a firewall policy that prevents

coordination between itself and any Upstate Jobs candidate or campaign.

13 III. The Proceedings Below

In April 2018, UJP commenced this action against Peter S. Kosinski, Douglas

A. Kellner, Andrew J. Spano, and Gregory P. Peterson (collectively, the “State

Board”), each of whom was, at the time, a Commissioner of the New York State

Board of Elections. 9 In its complaint, UJP claims that the provisions of New York

law governing housekeeping accounts and contributions to and transfers from

parties and independent bodies violate their First Amendment rights to free

speech and free association as well as their Fourteenth Amendment right to equal

protection. As relief, UJP seeks a declaration that certain of New York’s

campaign finance rules are unconstitutional insofar as they (1) permit individuals

such as Babinec to contribute $138,600 to parties but only $9,000 to independent

bodies when supporting a gubernatorial candidate in a general election; (2) allow

parties but not independent bodies to effectuate unlimited transfers of

contributions to their candidates; and (3) authorize parties but not independent

bodies to establish housekeeping accounts. UJP also seeks a declaration that

9 Douglas A. Kellner is no longer a Co-Chair Commissioner and has been replaced by Henry T. Berger. Andrew J. Spano is no longer a Commissioner and has been replaced by Essma Bagnuola. Gregory P. Peterson is no longer a Commissioner and has been replaced by Anthony J. Casale.

14 Upstate Jobs may raise and spend contributions on the same terms as parties and

an injunction restraining the State Board from enforcing the challenged provisions

of the New York Election Law against UJP. 10

Along with filing the complaint, UJP moved for a preliminary injunction to

permit Upstate Jobs to establish a housekeeping account, solicit contributions, and

transfer funds to candidates on the same terms as parties for the then-upcoming

2018 gubernatorial election. The district court denied the preliminary injunction

motion after determining that UJP failed to show a substantial likelihood of

success on the merits. On appeal, we affirmed the district court’s denial of

preliminary injunctive relief but noted that UJP’s claims “raise serious questions

of free expression and equal treatment under the law, as well as the appropriate

standard of judicial review.” Upstate Jobs Party v. Kosinski,

, 839

(2d Cir. 2018) (summary order).

Following discovery, the parties cross-moved for summary judgment. In

October 2021, the district court issued an amended decision granting summary

10 UJP also asserted a claim based on the sums that a party can raise for a primary election and carry over to a general election, further widening the financial disadvantage of independent bodies, which generally do not run in primary elections. UJP abandoned this claim by not seeking review on appeal.

15 judgment in favor of UJP as to the constitutionality of the differential contribution

and transfer limitations between parties and independent bodies in general

elections and granting summary judgment in favor of the State Board as to the

constitutionality of party housekeeping accounts. Upstate Jobs Party v. Kosinski,

, 140-41 (N.D.N.Y. 2021). 11

The district court began its analysis by outlining the applicable legal

standards for UJP’s constitutional claims. For First Amendment freedom of

speech and association challenges to contribution limits, the district court

explained that the Supreme Court applies a less-than strict tier of scrutiny that is

nevertheless rigorous.

. Under this intermediate standard, a limitation

on campaign contributions may be upheld “if the State demonstrates a sufficiently

important interest and employs means closely drawn to avoid unnecessary

abridgement of associational freedoms.”

(quoting McCutcheon v. Fed. Election

Comm’n,

(2014)). As to the Fourteenth Amendment equal

protection challenge, the district court determined that UJP’s equal protection

11 The amended decision is identical to the district court’s original decision, except for a footnote explaining why it was issued and a decretal paragraph permanently enjoining defendants from enforcing the challenged campaign contribution and transfer limits against UJP.

16 claims warranted a more exacting standard of review—that is, strict scrutiny—

because the classification between political parties and independent bodies

implicates fundamental rights (i.e., the First Amendment rights to free association

and speech). Id. at 128-29. Under strict scrutiny review, the district court

recognized, a state must show that its regulations are the least restrictive means

necessary to serve a compelling interest. Id.

Applying these standards to UJP’s claims regarding New York’s differential

contribution limits, the district court determined that the state’s interest in

preventing quid pro quo corruption or the appearance thereof was sufficiently

important under both the First and Fourteenth Amendments. Id. at 130–32. But

the distinction between parties and independent bodies in those contribution

limits was not, according to the district court, closely drawn to further that

anticorruption interest. Id. at 136. The State Board adduced no evidence of

enforcement actions against independent bodies for violating contribution limits

and failed to explain why it would be insufficient to adopt UJP’s proffered

alternative regulations, such as disclosure requirements or antiproliferation rules.

See id. at 133–35. Accordingly, the district court held that the restrictions violated

the First Amendment. Id. at 136. The district court separately determined that

17 parties and independent bodies were similarly situated with respect to

contribution limits, triggering strict scrutiny as to UJP’s Fourteenth Amendment

claims. Id. at 137. For the same reasons that it held the contribution limits were

not closely drawn to New York’s anticorruption interest, the district court also

held that the limits were not the least restrictive means necessary to serving that

interest and thus violated the Fourteenth Amendment. Id. at 137–38.

As to the housekeeping account exception, the district court deemed New

York’s anticorruption motivation to be a sufficiently important state interest for

limiting the exception to parties. Id. at 138–39. The district court credited the

concern that extending the housekeeping exception to include independent bodies

would allow such organizations to raise unlimited funds that could be spent on

“lavish perks, bonuses, or even expenditures that indirectly promote the

candidacy of specific candidates,” without the attendant regulatory infrastructure

that governs parties. Id. at 139–40. This concern was particularly salient for an

independent body like Upstate Jobs, whose founder, Babinec, served as a director

of both the independent body and its independent expenditure committee and

was “both entities’ largest (and frequently only) donor.” Id. at 139. The district

court next found the exception’s party-specific application to be closely drawn to

18 serving the state’s interest, in accord with the First Amendment, and to be the least

restrictive means of doing so, in accord with the Fourteenth Amendment. Id. at

139–40.

Based on the above reasoning, the district court entered a permanent

injunction enjoining the State Board from enforcing the asymmetric contribution

and transfer limits against Upstate Jobs and Babinec and granted the State Board

summary judgment on the housekeeping exception claim. The parties timely

appealed.

DISCUSSION

Before this Court, the State Board appeals the portion of the district court’s

summary judgment decision holding that New York’s asymmetric contribution

and transfer limits violate the First and Fourteenth Amendments. UJP appeals

the part of the district court’s judgment upholding New York’s housekeeping

account exception.

“We review the district court’s ruling on cross-motions for summary

judgment de novo, in each case construing the evidence in the light most favorable

to the non-moving party.” Panzella v. Sposato,

(2d Cir. 2017)

(citations omitted). As is well established, summary judgment is warranted

19 when “there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

At the start, we agree with the State Board that UJP’s challenges to New

York’s campaign finance rules are properly construed as facial, not as-applied,

challenges. The parties’ disagreement on this point is relevant because “a

plaintiff can only succeed in a facial challenge by establishing that no set of

circumstances exists under which the [relevant legal provision] would be valid,

i.e., that the law is unconstitutional in all of its applications.” Wash. State Grange

v. Wash. State Republican Party,

(2008) (internal alteration,

quotation marks, and citation omitted). Here, while Upstate Jobs seeks specific

injunctive relief that would permit it to participate in future elections under the

campaign finance rules currently applicable to parties, its constitutional

arguments sweep beyond its own circumstances and call into question the

campaign finance restrictions pertinent to all independent bodies. “The claim

therefore seems ‘facial’ in that it is not limited to plaintiff's particular case, but

challenges application of the law more broadly.” Vt. Right to Life Comm., Inc. v.

Sorrell,

(2d Cir. 2014) (quoting Iowa Right to Life Comm., Inc. v.

Tooker,

(8th Cir. 2013)). As a result, we construe UJP’s claims as

20 facial challenges to the pertinent features of the New York Election Law. See

at 126–27 (explaining that a facial challenge involves claims and requested relief

that “reach[es] beyond the particular circumstances of these plaintiffs”) (citation

omitted).

In any event, framing the claims as either facial or as applied is not outcome-

determinative in this case. Upstate Jobs is typical of the small, closely held

independent bodies that the State Board most often cites as raising legitimate

corruption concerns. To this point, UJP does not dispute that Babinec is Upstate

Jobs’ “largest (and frequently only) donor,” see Upstate Jobs Party v. Kosinski, 559 F.

Supp. 3d at 139, nor that he provided nearly all the contributions ever made to the

Upstate Jobs Committee, see App’x 219, 221, 223. UJP also does not dispute that

Upstate Jobs has successfully nominated only three candidates, including Babinec,

to appear on ballots as the organization’s designated nominee, has never

nominated more than a single candidate in an election cycle, see id. at 214-15, 221,

nor that Babinec serves as a director of both Upstate Jobs and its IEC, id. at 228.

In other words, if the challenged laws are facially constitutional, Upstate Jobs is

not the type of independent body that could bring a successful as-applied claim. 12

12 We express no view here as to whether a different conclusion might obtain for

21 Thus, regardless of how we construe them, UJP’s claims fail for the reasons

explained below.

I. Fourteenth Amendment

UJP claims that New York’s contribution limits and the related

housekeeping account exception violate the Fourteenth Amendment because they

establish a two-tiered system favoring political parties that achieve statewide

support over other candidate-nominating groups that do not. “To successfully

assert an equal protection challenge, petitioners must first establish that the two

classes at issue are similarly situated.” Yuen Jin v. Mukasey,

(2d

Cir. 2008); see also Jankowski-Burczyk v. I.N.S.,

(2d Cir. 2002) (“Of

course, the government can treat persons differently if they are not ‘similarly

situated.’” (citation omitted)).

Fatal to UJP’s equal protection claims, political parties and independent

bodies with concentrated donor bases and leadership are not similarly situated

with respect to the challenged election laws. Political parties have demonstrated

a differently composed and operated independent body, for example, one with numerous donors and more diffuse leadership, which nominated multi-candidate slates in consecutive election cycles.

22 a degree of statewide support that independent bodies, by definition, have not. 13

See

(3), (12). There are “obvious differences in kind

between the needs and potentials of a political party with historically established

broad support, on the one hand, and a new or small political organization on the

other.” Buckley v. Valeo,

(1976) (citation omitted). Given their

broader base, New York parties must abide by a range of structural and

operational requirements. Unrestrained by any such requirements, independent

bodies can (and, according to the State Board’s election law expert,

“overwhelmingly” do) consist of no more than a handful of affiliated individuals

banding together in support of a single candidate or issue. App’x 79–82.

Indeed, as already noted, this appears to be the case with Upstate Jobs, which has

a three-member board, one major donor, no office or employees, and which has

never run more than one candidate at a time. See App’x 223, 221, 214–15.

13 Because we conclude that political parties and independent bodies are not similarly situated, we need not reach the question of “whether it is appropriate to lift what is an admittedly ‘fundamental right’ found in the First Amendment and analyze its infringement here, in the Fourteenth Amendment context, shorn of what the Court has said about the appropriate level of scrutiny applicable to that right in its native doctrinal environment,” Riddle v. Hickenlooper,

(10th Cir. 2014) (Gorsuch, J., concurring).

23 The district court deemed parties and independent bodies to be “similarly

situated” on the basis that the sole differentiator between the two is “the number

of votes cast in a specific election,” or, in other words, “their size.” Upstate Jobs

Party, 559 F. Supp. 3d at 137. This framing is incorrect. First, that a distinction

between separate groups can be reduced to a single fact does not mean they are

similarly situated—quite the contrary. See, e.g., Jankowski-Burczyk,

(noting that “tax laws may separately classify couples who are married and those

who are unmarried” and “treat [those two groups] differently”); see also Schweiker

v. Hogan,

(1982) (“[I]n terms of their ability to provide for essential

medical services, the wealthy and the poor are not similarly situated and need not

be treated the same.”).

Moreover, other important distinctions flow from a political organization’s

size under New York law. Organizations with enough support to achieve party

status must comply with state requirements to file rules concerning party

governance with the state and county board of elections,

;

create a state committee composed of enrolled party members elected biannually,

§§ 2-102, 2-106; form county committees in each of New York’s counties,

typically by electing two or more party members in each election district within

24 each county, see id. § 2-104; file information regarding the officers of state and

county committees with the state and county boards of elections, id. § 2-112(d);

afford particular due process protections before removing party officers or

members, see id. § 2-116; and select nominees for election to public or party office

through specified procedures, frequently primaries, see id. §§ 2-106, 6-110. To

comply with these requirements, political parties—but not independent bodies—

must maintain substantial organizational infrastructure throughout the state.

Thus, the New York legislature has created “obviously sensible and useful”

classifications between political parties and independent bodies within a

“ramified statutory scheme,” Jankowski-Burczyk,

, undermining

Upstate Jobs’s claim that, despite being a small independent body, it is similarly

situated to a political party.

Further undercutting UJP’s Fourteenth Amendment challenges, the

Supreme Court rejected a similar claim in California Medical Association v. Federal

Election Commission,

(1981). As was relevant in that case, the Federal

Election Campaign Act (“FECA”) allowed corporations and labor unions to create

and make unlimited contributions to segregated funds for political purposes.

. Unincorporated associations, on the other hand, were limited in their

25 “contributions to . . . multicandidate political committee[s].”

Several

unincorporated associations challenged this contribution cap under the Fifth

Amendment’s equal protection clause, arguing that “because contributions are

unlimited in the former situation, they cannot be limited in the latter without

violating equal protection.”

The Supreme Court rejected this argument. In doing so, the Court

observed that FECA “as a whole impose[d] far fewer restrictions on individuals

and unincorporated associations than it does on corporations and unions.”

This differential treatment of the two groups “reflect[ed] a judgment by Congress

that these entities have differing structures and purposes, and that they therefore

may require different forms of regulation in order to protect the integrity of the

electoral process.”

. The contribution limits here, and the

housekeeping account exception, likewise reflect New York’s judgment that

parties and independent bodies require distinct treatment because they are distinct

types of entities. Making that judgment does not itself deny independent bodies

equal protection of the law.

UJP heavily relies on Riddle v. Hickenlooper,

(10th Cir. 2014), in

its argument to the contrary. There, the Tenth Circuit invalidated a Colorado

26 statute on equal protection grounds because it resulted in a disparity in the

contributions that major and minor party candidates could receive in the same

election. See

. In effect, general election candidates who first

ran in primaries could collect up to $400 from a single contributor, which could be

spent before or after the primary, while a candidate without a primary was eligible

to receive only half that amount from a single contributor. See

at 924–25. The

Tenth Circuit determined that contributors to a non-primary candidate were

similarly situated to contributors to Republican and Democratic nominees because

“no relevant distinctions existed between an individual wanting to donate money

to [a write-in candidate] and another individual wanting to donate to [that write-

in candidate’s] opponent.”

. Focusing on the contributors who

brought the claims, the court discerned no difference, aside from political

preference, between an individual wishing to donate to a write-in candidate who

did not run a primary and another wishing to donate to a Republican or Democrat.

See

at 926–27. The court acknowledged that the major party candidates might

be differently situated than candidates who did not run in a primary, “for the

Republican and Democratic candidates had to run in primaries and [the write-in

candidate] did not.”

. However, the court concluded that this

27 argument was unavailing because the contributors—rather than the candidates or

parties—had brought the equal protection challenge. See

(“They simply want

to contribute to their preferred candidate.”).

The logic of Riddle is inapposite to this case. Most obviously, the plaintiffs

here are the independent body and its leadership, not would-be contributors. 14

As explained above, independent bodies with concentrated donor bases and

leadership that function as the alter ego of a candidate are not similarly situated to

parties. Moreover, the challenged New York laws have not created different

individual contribution limits for candidates running in the same election.

Rather, regardless of party affiliation, all candidates may accept individual

contributions up to the statutory cap for the type of election. While parties may

separately receive contributions and transfer funds to candidates at higher levels

than may independent bodies, New York drew this distinction in light of parties’

demonstrated statewide backing and sizeable infrastructure.

At bottom, UJP insists that the Fourteenth Amendment requires treating

independent bodies commensurate with the widely-supported organizations New

Babinec, while a contributor to Upstate Jobs, did not assert a Fourteenth 14

Amendment claim in that capacity. See infra note 21.

28 York recognizes as political parties, without the regulations and requirements that

come with such recognition. If endorsed, this novel theory would effectively

require New York to disregard salient differences between established political

parties and small, oftentimes ad hoc organizations that routinely support a single

candidate in a single election cycle. These distinctions, however, “serve[]

important regulatory interests” and therefore do not violate the Fourteenth

Amendment. SAM Party, 987 F.3d at 278.

II. First Amendment

As to UJP’s First Amendment claims, we recognize at the start that “[t]he

judiciary owes special deference to legislative determinations regarding campaign

contribution restrictions.” Ognibene v. Parkes,

(2d Cir. 2011)

(citing Fed. Election Comm’n v. Beaumont,

(2003), and McConnell v.

Fed. Election Comm’n,

(2003)). At the same time, “[t]he First

Amendment has its fullest and most urgent application precisely to the conduct of

campaigns for political office.” Fed. Election Comm'n v. Cruz,

, 302

(2022) (internal quotation marks and citation omitted). The broad protection the

First Amendment affords to political speech “reflects our profound national

commitment to the principle that debate on public issues should be uninhibited,

29 robust, and wide-open.”

(citation omitted). Thus, “[w]hile paying

deference, the judiciary must also protect the fundamental First Amendment

interest in political speech.” Ognibene,

.

Balancing these considerations of democratic governance and constitutional

rights, the Supreme Court has instructed that “contribution limitations are

permissible as long as the Government demonstrates that the limits are ‘closely

drawn’ to match a ‘sufficiently important interest.’” Randall v. Sorrell,

(2006) (quoting Buckley,

). Unlike expenditure limits, which

implicate “core First Amendment rights of political expression” and thus require

“exacting scrutiny,” McCutcheon,

(quoting Buckley,

), “contribution limits impose a lesser restraint on political speech because

they ‘permit the symbolic expression of support evidenced by a contribution but

do not in any way infringe the contributor’s freedom to discuss candidates and

issues,’”

(internal alterations omitted) (quoting Buckley,

); see also

Vt. Right to Life,

(“Contribution limits are more leniently reviewed

because they pose only indirect constraints on speech and associational rights.”

(internal quotation marks and citation omitted)).

30 Under this “lesser but still rigorous standard of review,” we may sustain

“even a significant interference with protected rights of political association . . . if

the State demonstrates a sufficiently important interest and employs means closely

drawn to avoid unnecessary abridgement of associational freedoms.”

McCutcheon,

(internal alteration, quotation marks, and citations

omitted). At both steps of this analysis, the state “bears the burden of proving

the constitutionality of its actions.”

(citation omitted).

As to what counts as a sufficiently important state interest, the Supreme

Court “has recognized only one permissible ground for restricting political speech:

the prevention of ‘quid pro quo’ corruption or its appearance.” Cruz, 596 U.S. at

305; see also McCutcheon,

(“Any regulation [limiting campaign

contributions] must . . . target what we have called ‘quid pro quo’ corruption or its

appearance.”). However, “government regulation may not target the general

gratitude a candidate may feel toward those who support him or his allies, or the

political access such support may afford.” McCutcheon,

. In other

words, “[i]ngratiation and access . . . are not corruption.” Citizens United v. Fed.

Election Comm’n,

(2010); see also Ognibene,

(Livingston, J., concurring in part and concurring in the judgment) (“[F]avoritism

31 and influence, unlike corruption, are unavoidable in representative politics, in

which a legitimate and substantial reason for casting a ballot or making a

contribution is that the candidate will respond by producing those political

outcomes the supporter favors.” (internal quotation marks and citations omitted)).

To ascertain the line between corruption and influence, we focus on quid pro quo

corruption, i.e., the “direct exchange of an official act for money.” McCutcheon,

. 15

Once a state demonstrates that a sufficient anticorruption interest motivated

its contribution limit, the state must then show that those limits are “closely

drawn” to avoid unnecessary burdens on political speech or associational

freedoms. See McCutcheon,

(citations omitted). Closely drawn

means “a fit that is not necessarily perfect, but reasonable; that represents not

necessarily the single best disposition but one whose scope is in proportion to the

interest served, that employs not necessarily the least restrictive means but a

15 Efforts to restrict campaign speech “based on other legislative aims” have largely failed. Cruz, 596 U.S. at 305. For example, the Supreme Court has “denied attempts to reduce the amount of money in politics,” “to level electoral opportunities by equalizing candidate resources,” and “to limit the general influence a contributor may have over an elected official.” Id. But see Ognibene, 671 F.3d at 197–98 (Calabresi, J., concurring) (questioning the rejection of a “level playing field” interest).

32 means narrowly tailored to achieve the desired objective.” Id. at 218 (internal

alterations, quotation marks, and citations omitted) .

A. Contribution Limits

UJP claims that New York’s campaign finance rules violate the First

Amendment by permitting (1) higher individual contributions to parties than to

independent bodies and (2) unlimited transfers from parties to candidates but only

capped transfers from independent bodies to candidates. 16 The district court

determined that these rules were supported by New York’s sufficiently important

goal of stanching corruption but were not closely drawn to achieving this aim.

Upstate Jobs Party, 559 F. Supp. 3d at 131–36. We disagree.

1. Anticorruption State Interest

We agree with the district court that New York has sufficiently

demonstrated that its interest in anticorruption motivates the distinct contribution

limits for parties and independent bodies. In general, the possibility that “large

direct contributions” to candidates “could be given to secure a political quid pro

16 In its briefing, UJP does not disaggregate its challenge into these two components, instead referring to them jointly as New York’s “contribution limits” or “contribution regime.” Nor does it argue that the transfer limit is duplicative of the contribution limit. We therefore do not separately consider the merits of a hypothetical distinct challenge to the constitutionality of the transfer limit.

33 quo” renders limits on direct contributions permissible “to ensure against the

reality or appearance of corruption.” Citizens United, 558 U.S. at 356–57 (internal

quotation marks and citation omitted). As one of the State Board’s experts

averred, designing contribution limits in accord with an organization’s size

furthers anticorruption goals; if independent bodies, consisting of only the

candidate and possibly a few other individuals, could “receive contributions of the

size . . . permitted for political parties,” candidates would have a strong incentive

to use independent bodies as a vehicle to evade contribution limits. See App’x

149. The effect would be most apparent in smaller elections with lower

contribution limits, allowing a candidate to amass contributions well beyond the

prescribed candidate limits via its independent body.

Another State Board expert provided a hypothetical illustrating these

corruption fears. Imagine a candidate running for town supervisor in an election

with an individual contribution limit of $1,000. Id. at 161. Dissatisfied with this

contribution limit, the candidate forms an independent body and gathers the

requisite petition signatures to appear on the ballot as the body’s nominee. Id.

If UJP has its way, this newly created independent body could collect up to

$138,600 from any individual contributor—more than 138 times the individual

34 contribution limit applicable to town supervisor candidates under existing law.

Id. This would eviscerate New York’s prescribed contribution limits, thereby

increasing the appearance of and the opportunities for quid pro quo corruption that

these individual contribution limits were intended to prevent. 17

The same concern does not apply to New York’s political parties, which

“have significant democratic controls” that simply “do not exist for independent

bodies.” App’x 153. Almost by definition, political parties in New York have a

relatively lower risk of quid pro quo corruption, owing to their substantial measure

of statewide support. In addition, political parties can be expected to run many

candidates throughout the state in any given election cycle, thereby diffusing the

corruptive potential or appearance of any large contribution. See McCutcheon,

572 U.S. at 225–26 (“[T]here is a clear, administrable line between money beyond

the base limits funneled in an identifiable way to a candidate—for which the

17 UJP argues that this hypothetical is implausible because the conduct described would violate New York’s anticircumvention rules. We do not see how. New York law prohibits any person from making contributions in somebody else’s name,

(1), or from making contributions with the intent to evade applicable contribution limits,

§ 14-126(5), (6). But, under UJP’s desired limits, individuals would be expressly permitted to contribute up to $138,600 to an independent body, and independent bodies would be free to make unlimited transfers to their candidates. Thus, contrary to UJP’s claim, New York’s anticircumvention rules are not implicated in the State Board’s example.

35 candidate feels obligated—and money within the base limits given widely to a

candidate’s party—for which the candidate, like all other members of the party,

feels grateful.”).

Conversely, independent bodies are not subject to the same regulatory

scheme and may be organized without any democratic input. They typically

serve as the alter ego of a single candidate or small group of candidates. See

App’x 81–82, 91–92. Thus, if the contribution limit for independent parties were

raised to match that of political parties, the effective result would be increased

direct contributions for independent candidates in all races—even small ones with

relatively few voters. The State Board has a legitimate concern about an election

in which small, closely held independent bodies running as few as one

candidate—and not subject to any regulatory constraints—are able to obtain six-

figure individual contributions.

As already discussed, Upstate Jobs, itself, underscores this point. It

appears to have just a handful of supporters, and its single meaningful donor is

also the only meaningful donor to its related IEC, which for years shared the same

three-member Board of Directors. Upstate Jobs has only ever nominated three

candidates, and never more than one in a given election cycle. Given Upstate

36 Jobs’s small size, limited donor pool, and concentrated leadership base, there are

simply not enough mechanisms within the organization to ensure that New York’s

valid anticorruption interests are served.

In arguing to the contrary, UJP relies on Davis v. Federal Election Commission

for the proposition that “imposing different contribution . . . limits on candidates”

competing in the same election “is antithetical to the First Amendment,”

, 743–44 (2008). At issue in Davis was the so-called “Millionaire’s

Amendment” of the Bipartisan Campaign Reform Act (“BCRA”), which increased

the individual contribution limits applicable to opposition candidates when

another candidate expended a certain amount of personal funds.

. The

Supreme Court construed the Millionaire’s Amendment as “impos[ing] an

unprecedented penalty” on candidates’ exercise of their First Amendment rights,

by creating a scheme whereby a candidate’s “vigorous exercise of the right to use

personal funds to finance campaign speech produce[d] fundraising advantages for

opponents in the competitive context of electoral politics.”

. “The

resulting drag on First Amendment rights” was unconstitutional because it put

candidates who wished to self-finance their campaigns in a bind: “abide by a limit

on personal expenditures or endure the burden that is placed on that right by the

37 activation of a scheme of discriminatory contribution limits.”

.

Because this substantial burden was not justified by any government interest in

”eliminating corruption or the perception of corruption,” the Court invalidated

the Millionaire’s Amendment.

.

Here, unlike Congress in Davis, New York has articulated a satisfactory

anticorruption interest animating its individual contribution limits to independent

bodies. Although UJP argues that the State Board has produced insufficient

evidence to show that the challenged contribution limits serve that interest, “[i]t is

not necessary to produce evidence of actual corruption to demonstrate the

sufficiently important interest in preventing the appearance of corruption.”

Ognibene,

. This is “because the scope of quid pro quo corruption

can never be reliably ascertained,” entitling legislatures to design and enact

measures that safeguard the integrity of our representative democracy.

;

see

(“There is no reason to require the legislature to experience the very

problem it fears before taking appropriate prophylactic measures.”).

To be sure, “mere conjecture” is inadequate to satisfy the state’s “First

Amendment burden,” McCutcheon,

(quoting Nixon v. Shrink Mo.

Gov’t PAC,

(2000)), and “the threat of corruption cannot be

38 ‘illusory,’” Ognibene,

(quoting Buckley,

). But, for

reasons we previously articulated, the State Board’s argument in support of its

anticorruption interest is neither “mere conjecture,” nor “illusory.”

At any rate, the present case contrasts sharply with the examples UJP

marshals to support its demand for substantial evidence of New York’s

anticorruption purpose. For instance, in McConnell v. Federal Election Commission,

the government argued that it needed to ban political contributions from minors

in order to guard against “corruption by conduit”—i.e., parents using “their minor

children to circumvent contribution limits applicable to the parents.” 540 U.S. at

231–32, overruled on other grounds by Citizens United,

. The Court

rejected this justification because the government “offer[ed] scant evidence of this

form of evasion.” Id. at 232.

In an effort to point out similar deficiencies in the State Board’s justification,

UJP emphasizes that (1) the State Board has never brought an enforcement action

against an independent body for evading a contribution limit, and (2) there is no

evidence that an independent body has ever been implicated in a corruption

scandal in New York. However, this argument ignores that “[t]he quantum of

empirical evidence needed to satisfy heightened judicial scrutiny . . . will vary up

39 or down with the novelty and plausibility of the justification raised.” Shrink Mo.,

. Here, the State Board has provided a straightforward and well-

recognized justification for New York’s distinct contribution limits for political

parties and independent bodies: in the absence of these limits, donors could

bestow large contributions on concentrated independent bodies serving as the

alter ego of a single candidate. This justification reflects “[t]he idea that large

contributions” can “corrupt or . . . create the appearance of corruption,”

McConnell,

, which the Supreme Court endorsed nearly a half-

century ago in Buckley and has since repeated, see McCutcheon,

(“[T]he risk of corruption arises when an individual makes large contributions to

the candidate or officeholder himself.”); Shrink Mo.,

(discussing “the

perception of corruption inherent in a regime of large individual financial

contributions to candidates for public office” (internal quotation marks and

citation omitted)). Thus, the State Board’s justification in this case “is neither

novel nor implausible,” McConnell,

, and the State Board has

provided the relatively low quantum of evidence required under these

circumstances.

40 In addition, UJP points to a lack of legislative findings in the record

concerning the corruption risk posed by independent bodies. In context,

however, the relevant legislative history supports rather than undercuts the State

Board’s rationale. In 1992, following a series of corruption scandals, the

legislature enacted New York’s first party contribution limit of $62,500, subject to

inflation adjustment. 1992 N.Y. Sess. Laws ch. 79 § 25. This measure was

adopted on the heels of a years-long investigation by the New York State

Commission on Government Integrity, which held dozens of public hearings and

conducted interviews of more than 1,000 people before recommending a bevy of

governance reforms. See New York State Comm’n on Gov’t Integrity, Integrity

and Ethical Standards in New York State Government: Final Report to the Governor,

, 252 (1991). As relevant to the challenged contribution

limits here, the Commission issued two reports attesting to the existence of a “pay-

to-play” dynamic in New York’s electoral system and a connection between

financial contributions to parties and policy outcomes. 18 The absence of specific

18 See generally N.Y. State Comm’n on Gov’t Integrity, The Midas Touch: Campaign Finance Practices of Statewide Officeholders (1989), available at https://ir.lawnet.fordham.edu/feerick_integrity_commission_reports/18/; N.Y. State Comm’n on Gov’t Integrity, The Albany Money Machine: Campaign Financing for New York State Legislative Races (1988), available at https://

41 findings related to scandals involving independent bodies is unsurprising, as the

Commissioner’s focus was on corruption stemming from New York’s under-

regulated party system.

This history reveals that UJP is seeking evidence of corruption in

independent bodies that, for good reasons, does not exist. Because the status quo

ante was unlimited contributions to parties, the legislature sought ways to reform

New York’s system for regulating political parties in particular. Thus, the lack of

evidence of the nature UJP seeks does not cast doubt on the anticorruption aims

of New York’s contribution limitations.

In sum, the State Board has demonstrated that asymmetry in New York’s

contribution limitations is supported by a sufficiently important state interest in

combatting actual and apparent quid pro quo corruption.

2. Closely Drawn

The district court struck down New York’s contribution limits after finding

that they were not closely drawn to their anticorruption purpose, in large part

because the State Board did not substantively rebut UJP’s proffered narrower

ir.lawnet.fordham.edu/feerick_integrity_commission_reports/21/.

42 alternatives to the disparate contribution limits. See Upstate Jobs Party, 559 F.

Supp. 3d at 133–36.

Contrary to the district court’s analysis, the closely drawn test is not a “least

restrictive means” test. Properly construed, the closely drawn test allows a state

to enact restrictions that are “not necessarily perfect, but reasonable,”

commensurate with the interest served, and “not necessarily the least restrictive

means but a means narrowly tailored to achieve the desired objective.”

McCutcheon,

(internal alteration and citations omitted).

The challenged contribution limits satisfy this standard. “On only one

occasion has the Supreme Court held that a contribution limit was not closely

drawn to the government’s interests.” Green Party of Conn. v. Garfield (“Green

Party I”),

(2d Cir. 2010). That was in Randall v. Sorrell, where the

Supreme Court evaluated several factors before holding unconstitutional a

Vermont law limiting individual contributions per election to $400 to a candidate

for governor, lieutenant governor, or other statewide office, $300 to a candidate

for state senator, and $200 to a candidate for state representative.

; see also Thompson v. Hebdon,

, 5–6 (2019) (per curiam) (confirming

that the Randall factors should guide the “closely drawn” analysis for contribution

43 limits). Vermont imposed these same contribution restrictions on political

parties, “defined broadly to include ‘any subsidiary, branch or local unit’ of a

party, as well as any ‘national or regional party affiliates’ of a party.” Randall,

(citation omitted). In striking down Vermont’s contribution limits as

violative of the First Amendment, Justice Breyer’s plurality opinion observed that

“contribution limits that are too low can . . . harm the electoral process by

preventing challengers from mounting effective campaigns against incumbent

officeholders, thereby reducing democratic accountability.”

at 248–49. In

this way, too-low limits can “prove an obstacle to the very electoral fairness [they]

seek[] to promote.”

.

The Court therefore evaluated whether Vermont’s contribution limits

“prevent[ed] candidates from ‘amassing the resources necessary for effective

campaign advocacy; . . . [or] magnif[ied] the advantages of incumbency to the

point where they put challengers to a significant disadvantage; in a word, whether

they [were] too low and too strict to survive First Amendment scrutiny.”

(internal alteration omitted) (quoting Buckley,

). In the Court’s

view, Vermont’s law exhibited several “danger signs” that warranted close

review, id. at 249, namely that the state’s contribution limits were “substantially

44 lower than both the limits [the Court had] previously upheld and comparable

limits in other States,” id. at 253. In addition to these “danger signs,” id. at 249,

five factors influenced the Court’s conclusion that Vermont’s contribution

limitations were not closely drawn: (1) they stood to “significantly restrict the

amount of funding available for challengers to run competitive campaigns,” id. at

253; (2) the law “insist[ed] that political parties abide by exactly the same low

contribution limits that apply to other contributors,” which “threaten[ed] harm to

a particularly important right, the right to associate in a political party,” id. at 256;

(3) the law exempted volunteer services to a campaign but did not exclude “the

expenses those volunteers incur . . . in the course of campaign activities,” thereby

“aggravat[ing]” the law’s constitutional infirmities, id. at 259; (4) the contribution

limits were not adjusted for inflation, id. at 261; and finally (5) the state failed to

offer “any special justification that might warrant a contribution limit so low or so

restrictive,” id.

The first, second, and fourth Randall factors are particularly salient to this

case, and each favors upholding New York’s contribution limits. As to the first

factor, unlike in Randall, New York’s $9,000 individual contribution limit to

statewide candidates comfortably exceeds limits the Supreme Court has

45 previously upheld. See Buckley,

(upholding $1,000 per election

individual contribution limit, which is approximately $5,500 in today’s dollars);

see also Shrink Mo., 528 U.S. at 382–83, 395–96 (upholding $1,075 per election limit

for candidates for statewide office in Missouri). Even after New York’s recent

decision to lower the individual contribution limits, they remain higher than the

national average and median. 19 Furthermore, federal law, like New York law,

allows individuals to contribute more to a party ($10,000 to a state, district, or local

party; $41,300 to a national party) than to a candidate ($3,300) or other political

committee ($5,000). See

(a)(1);

(b)(1), (c)(1), (d);

, 7089-90 (Feb. 2, 2023). Nor is New York an outlier among states

in authorizing higher contribution limits for parties than for other types of donors,

as at least twenty-eight other states (as of the 2021-2022 election cycle) generally

permit parties to give more money directly to candidates than individuals, unions,

19 As of February 1, 2023, the national average and median contribution limits for a governor’s race were $6,645 and $4,240, respectively (compared to $9,000 in New York). The national average and median contribution limits for a state senate race were $3,062 and $2,250, respectively (compared to $5,000 in New York). Finally, the national average and median contribution limits for a state house seat were $2,708 and $1,900, respectively (compared to $3,000 in New York). See Nat’l Conf. of State Legislatures, Campaign Contribution Limits: Overview, https://www.ncsl.org/elections-and- campaigns/campaign-contribution-limits-overview.

46 corporations, or PACs can give. 20 Indeed, ten states permit unlimited

contributions to candidates from state parties but not from non-party

organizations in most general election circumstances. 21

As to the second factor, the Randall Court’s concern that Vermont law

jeopardized “the particularly important right . . . to associate in a political party”

by requiring “political parties [to] abide by exactly the same low contribution limits

that apply to other contributors,” is not present here, where the basis of UJP’s

challenge is the higher contribution limit applicable to parties. Randall,

. The Supreme Court has affirmed the centrality of political parties as a

locus of First Amendment associational activity on several occasions. See, e.g.,

Cal. Democratic Party v. Jones,

, 574–76 (2000) (describing constitutional

importance of associating in political parties); Timmons v. Twin Cities Area New

20 These states are: Alaska, Arizona, California, Colorado, Connecticut, Delaware, Florida, Idaho, Illinois, Kansas, Kentucky, Louisiana, Massachusetts, Michigan, Minnesota, Montana, New Jersey, North Carolina, Ohio, Oklahoma, Rhode Island, South Carolina, South Dakota, Tennessee, Vermont, Washington, Wisconsin, and Wyoming. See National Conference of State Legislatures, State Limits on Contributions to Candidates, 2021-2022, https://documents.ncsl.org/wwwncsl/Elections/Contribution- Limits/2021-2022.pdf [hereinafter, “NCSL, State Limits on Contributions to Candidates”]. 21 These states are: California, Illinois, Kansas, Kentucky, Louisiana, New Jersey, North Carolina, Vermont, Wisconsin, and Wyoming. See NCSL, State Limits on Contributions to Candidates.

47 Party,

(1997) (”The First Amendment protects the right of citizens

to associate and to form political parties for the advancement of common political

goals and ideas.”); Norman v. Reed,

(1992) (”For more than two

decades, this Court has recognized the constitutional right of citizens to create and

develop new political parties.”). Congress also appears to appreciate the

importance of political parties, given that FECA allows “individuals to contribute

more money . . . to a party than to a candidate . . . or to other political committees.”

Colo. Republican Fed. Campaign Comm. v. Fed. Election Comm’n,

(1996); see

(a)(1). In announcing the judgment of the Court,

Justice Breyer highlighted how FECA’s differential treatment of parties as

compared to non-parties “demonstrate[d] Congress’ general desire to enhance

what was seen as an important and legitimate role for political parties in American

elections,” Colo. Republican Fed. Campaign Comm.,

. Such

reasoning undermines UJP’s challenge to New York’s analogous provision.

New York’s campaign finance regime also does not inhibit Upstate Jobs or

other independent bodies “from amassing the resources necessary for effective

advocacy.” Randall,

(citation omitted). The higher-than-average

$9,000 contribution limit applicable to Upstate Jobs’s candidates for statewide

48 office is not “so radical in effect as to render political association ineffective, drive

the sound of a candidate's voice below the level of notice, and render contributions

pointless,” Shrink Mo.,

. This sort of extreme restriction aside,

legislatures are best situated to set appropriate contribution limits. See Beaumont,

(“[D]eference to legislative choice is warranted particularly when

Congress regulates campaign contributions, carrying as they do a plain threat to

political integrity and a plain warrant to counter the appearance and reality of

corruption . . . .”).

Finally, as to the fourth Randall factor, New York’s contribution limit, unlike

Vermont’s, is subject to adjustment for inflation. See

-

114(10)(b).

The district court did not undertake the Randall analysis in striking down

New York’s contribution limits. Instead, it faulted the state for failing to explain

why alternative laws such as disclosure regulations, anti-proliferation rules, or

required segregation of funds could not more narrowly address its anticorruption

concerns. See Upstate Jobs Party, 559 F. Supp. 3d at 135–36. But, even if these

alternatives might also serve anticorruption interests, they fail to account for the

reality that independent bodies—as exemplified by Upstate Jobs itself—are

49 typically closely held entities that function as the alter ego of a single candidate.

Thus, due to their structure, independent bodies often serve as the sort of

“conduits for contributions to candidates” that “pose a perceived threat of actual

or potential corruption.” Cal. Med. Ass’n,

(Blackmun, J.,

concurring in part and concurring in the judgment); see Vt. Right to Life,

(“The Supreme Court has upheld limitations on contributions to entities

whose relationships with candidates are sufficiently close to justify concerns about

corruption or the appearance thereof.” (internal quotation marks omitted)).

In sum, we conclude that New York has met its burden to establish that the

lower contribution limits applicable to independent bodies are closely drawn to

an important interest in preventing actual and apparent quid pro quo corruption.

In reaching this conclusion, we are not required to “exhibit a naiveté from which

ordinary citizens are free.” Dep’t of Com. v. New York,

(2019)

(quoting United States v. Stanchich,

(2d Cir. 1977)). Exercising

this common sense, we conclude that, without these limits, real or perceived

corruption could result from a candidate’s knowledge that one donor has

provided the lion’s share of his campaign cash or a large donor’s knowledge that

his money will go to a single candidate.

50 3. Babinec’s First Amendment Claim

The district court separately determined that the challenged contribution

limits, which prevent Babinec and similarly situated individuals from donating

the same amount to an independent body as they could to a political party, violate

Babinec’s First Amendment rights. See Upstate Jobs Party, 559 F. Supp. 3d at 136. 22

But, as just discussed in the context of UJP’s claims, New York’s contribution limits

are closely drawn to advancing the state’s anticorruption objectives, thereby

defeating Babinec’s First Amendment challenge. Two additional points

demonstrate the flaws in Babinec’s assertion of his personal First Amendment

rights in this context.

First, Babinec argues that New York’s contribution limits restrict speech

based on the identity of the speaker. In support of this argument, Babinec cites

the rule enunciated in Citizens United that “the First Amendment stands against

attempts to disfavor certain subjects or viewpoints,” prohibiting “restrictions

distinguishing among different speakers, allowing speech by some but not

others.”

. However, the restrictions of which Babinec complains

22 The State Board is correct that Babinec asserted only a First Amendment claim in the complaint and has not asserted a Fourteenth Amendment claim.

51 are not speaker-based. New York’s contribution limits distinguish between the

recipients of the contributions, not the contributors; Babinec, for example, could

donate the maximum amount to a political party, if he saw fit, and is not limited

to contributing to independent bodies. As such, the contribution limits are not

analogous, from a First Amendment perspective, to the total ban on independent

expenditures from a corporation’s general treasury that was at issue in Citizens

United. See

(“[T]he Government may not suppress political speech on

the basis of the speaker’s corporate identity.”). To the contrary, the Supreme

Court has approved differential contribution limits based on the identity of the

recipients. See Colo. Republican Fed. Campaign Comm.,

(recognizing

that different contribution limits apply under federal law based on speaker’s

decision to contribute to a party, candidate, or political committee). Ignoring this

distinction, Babinec analogizes his position to that of the contributor-plaintiffs in

Riddle, arguing that New York’s contribution limits unconstitutionally “create[] a

class of favored contributors who contribute to Parties and disfavored contributors

who contribute to Independent Bodies.” Pls.’ Final Opening & Resp. Br. at 56.

Unlike in Riddle, where the relevant statute arbitrarily distinguished between

contributors based on the time when their preferred candidate entered the race,

52

, New York law “sensibl[y]” distinguishes between political parties

and independent bodies based on their base of support. Jankowski-Burczyk,

. Moreover, the Riddle defendants did not argue that the “problem”

created by the state—primary elections—was meant to fight quid pro quo

corruption. Here, by contrast, requirements forcing parties to implement

democratic controls reduce the possibility of individuals controlling parties and,

therefore, the attendant appearance of corruption.

Second, while the challenged restrictions limit the amount Babinec may give

to his preferred political organization, the burden on his right to engage in political

expression is not so substantial as to violate the First Amendment. Babinec

remains entitled to spend unlimited sums through an IEC—a right he has

exercised to the tune of $265,898 in contributions to the Upstate Jobs Committee.

See App’x 71–72. We made a similar point in Corren v. Condos,

(2d

Cir. 2018), a case assessing a Vermont law requiring candidates who accepted

public funds to forgo most private contributions, see

. In that case, we

upheld the restriction on private funds when a candidate voluntarily opted into

the state’s public financing scheme, in part because “supporters retained a wide

range of ways to express their support given . . . [their] ability to make unlimited

53 independent expenditures.”

(internal quotation marks and citation

omitted).

For these reasons, as well as those outlined with respect to the other

plaintiffs’ challenge, New York’s contribution limits do not violate Babinec’s First

Amendment rights.

B. Housekeeping Accounts

UJP also challenges the housekeeping account exception to New York’s

contribution limits as violative of the First and Fourteenth Amendments. Under

this exception, political parties, but not independent bodies, can maintain

unlimited segregated accounts, so long as expenditures from these accounts are

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.”

(3). The district court’s decision to

uphold this rule is the subject of UJP’s cross-appeal.

The district court upheld the housekeeping account exception against UJP’s

First and Fourteenth Amendment challenges, determining that it was closely

drawn and the least restrictive means necessary to serving New York’s

anticorruption interests. Upstate Jobs, 559 F. Supp. 3d at 139–40. For reasons

54 already discussed, see supra at [22], parties and independent bodies are not

similarly situated, defeating UJP’s Fourteenth Amendment challenge to the

housekeeping account exception. As to the First Amendment challenge, we hold

that the district court correctly upheld the housekeeping account rule as

sufficiently tailored to advancing the government’s anticorruption interest. Like

New York’s differential contribution limits, its housekeeping account exception

recognizes meaningful organizational differences between political parties and

independent bodies.

1. Speaker-Based Distinction

To start, UJP argues that New York’s housekeeping account rule draws an

unconstitutional speaker-based distinction, “allowing speech by some but not

others,” Citizens United,

. The First Amendment prohibits such

distinctions, as“[s]peech restrictions based on the identity of the speaker are all too

often simply a means to control content.”

However, the challenged rule is not an attempt to “control content.”

Whether an entity may create a housekeeping account hinges on whether it has

garnered enough statewide support to become a party, not what it wants to “say”

by spending unlimited sums on housekeeping. Party status in New York is fluid,

55 not permanent; any independent body, with any platform or viewpoint, can

become a party and enjoy the housekeeping account exception if it garners enough

public support. Cf. Green Party II,

(holding that Connecticut could

“distinguish between candidates who can, and who cannot, make a preliminary

showing of public support” in the provision of public campaign funds); Buckley,

424 U.S. at 97–98 (noting the “obvious differences . . . between the needs and

potentials of a political party with historically established broad support, on the

one hand, and a new or small political organization on the other” in explaining

that “the Constitution does not require Congress to treat all declared candidates

the same for public financing purposes”).

Upstate Jobs attempts to distinguish these cases because they involved

apportioning public funds to candidates. Even recognizing that the public

campaign finance context might implicate unique interests, these considerations

do not undercut the permissibility of popularity-based distinctions here. In this

context, New York’s distinction between parties and independent bodies is based

on a transitory status that any independent body, of whatever political persuasion,

can overcome via success at the ballot box. UJP’s speaker-based challenge to the

housekeeping accounts exception therefore fails.

56 2. Anticorruption State Interest

To justify the application of its housekeeping accounts exception to only

political parties, the State Board provides the same anticorruption justification as

for its contribution limits. Its concern lies primarily with permitting unlimited

contributions to political organizations that are often small and tightly intertwined

with a single candidate or a small handful of candidates.

The State Board offers an illustrative hypothetical. Suppose a wealthy

donor makes a significant contribution to the housekeeping account of an

independent body fielding just one candidate in a single election. New York

Election Law § 14-124(3)’s “express purpose” restriction would prevent the

independent body, in theory, from spending that money directly on that

candidate’s campaign; but in practice, because money is fungible, every dollar

contributed to a housekeeping account would free up another dollar for direct

candidate support. Indeed, UJP’s complaint acknowledges as much. See App’x

18 (“Without this [housekeeping] account, the UJP is required to pay for its

headquarters and pay UJP staff salaries from donor dollars that are limited to the

maximum amount for the candidates the UJP is fielding. This siphons money

away from the UJP that it needs to disseminate its message.” (citation omitted)).

57 While this threat might appear mitigated, at least in part, by general contribution

and transfer limits, there are, nevertheless, myriad ways that housekeeping funds

could be spent to benefit a single candidate in keeping with § 14-124(3)’s “express

purpose” restriction, such as funding targeted get-out-the-vote efforts or hiring

the candidate’s inner circle as staff.

Even if parties’ housekeeping accounts present similar risks, the critical

distinction is parties’ larger size and attending democratic controls. See supra at

[33] Thus, because of the likelihood of an independent body being merely the

alter ego of a candidate, there is a greater risk of contributions earmarked for such

a body’s housekeeping account functionally being direct contributions to the

candidate, creating a heightened opportunity for quid pro quo corruption. Cf.

McCutcheon,

(“[T]here is not the same risk of quid pro quo corruption

or its appearance when money flows through independent actors to a candidate,

as when a donor contributes to a candidate directly.”). In other words, to the

extent independent bodies function as alter egos of their candidates, there may be

no practical distinction between donating to an independent body’s housekeeping

account and donating directly to a candidate. Like the district court, we

recognize this as a valid concern supporting the different contribution limits.

58 As with the contribution limits, Upstate Jobs argues that the legislative

history of the housekeeping account rule contains insufficient evidence of

corruption in independent bodies to support the state’s purported rationale. We

disagree. The history reveals a basis for the legislature’s concern that corruption

could flow from unchecked donations to party housekeeping accounts in ways

equally applicable to independent bodies. In 1988, New York amended its

election law to require parties to disclose all monies received into, or expended

from, housekeeping accounts. App’x 164–65; see

.

Previously, New York had exempted party housekeeping accounts from financial

disclosure requirements, which led to “[r]eported abuses of these accounts,”

including “concealing contributions exceeding the legal ceiling for giving to an

organization’s campaign account, or juggling funds to promote a candidate, which

is prohibited.”

. These accounts “ha[d] been used as a shield or a novel

defense by public officials who [had] been charged with bribery.”

The

addition of disclosure requirements for these accounts was designed to “close this

loophole that create[d] a breeding ground for corruption,”

“protect[] against

the corrupt use of the resources of political organizations,”

, and stem “the

corruption . . . eat[ing] away at the credibility of our political system,”

at 181–

59 82. 23 Thus, as this history demonstrates, the legislature imposed disclosure

requirements for housekeeping accounts because of corruption concerns.

In this regard, the district court aptly described the state’s corruption

concerns surrounding housekeeping accounts, observing that “candidates from

these Independent Bodies would be able to easily identify the source of the

donation, which could lead to a candidate feeling obligated to take certain

positions and contribute to the appearance of quid pro quo corruption.” Upstate

Jobs Party, 559 F. Supp. 3d at 139. We conclude that this is a sufficiently important

anticorruption interest, reinforced by the legislative history of the most recent

amendment to the housekeeping account rule.

3. Closely Drawn

Next, the district court determined that New York’s housekeeping account

exception was closely drawn to its anticorruption interest. In doing so, the

district court recognized the sense in preventing independent bodies from having

these unlimited accounts in which “ordinary contribution limits do not apply,”

In line with our analysis as to the efficacy of § 14-124(3)’s “express purpose” 23

restriction, a letter to Governor Mario Cuomo from John D. Feerick, Chairman of the New York Commission on Government Integrity, opining on the legislation, also explained that “[d]ollars, of course, are fungible and every dollar deposited into a ‘housekeeping’ account frees another dollar for use in a campaign.” App’x 172.

60 thus raising “a significant danger of the appearance of quid pro quo corruption in

connection with them.” Id. We agree.

First, affording housekeeping accounts only to parties does not represent

the type of redundant “prophylaxis-upon-prophylaxis” regulation of independent

bodies upon which the Supreme Court has looked skeptically. Cruz, 596 U.S. at

306. As explained above, because money is fungible, even when earmarked as

housekeeping contributions, it can create corruption risks in alter ego independent

bodies. Thus, a housekeeping exception for such bodies would substantially

undermine the general contribution limit, which we have already found is closely

drawn to the state’s interest in preventing actual and apparent quid pro quo

corruption. As such, excluding independent bodies from creating unlimited

housekeeping accounts is essential to enforcing that contribution limit—the

primary prophylaxis against corruption.

Second, Upstate Jobs’ own activities illustrate how the lack of a

housekeeping account exception for small independent bodies does not cause

“unnecessary abridgement of First Amendment rights.” McCutcheon,

(internal quotation marks omitted). While Upstate Jobs has held several

meetings and focus groups and spent funds on digital media and mailers, the

61 record shows that, given its small size, it has never needed additional

housekeeping funds. In 2018, the only year for which the record contains

complete financial data—and also the most recent year in which Upstate Jobs

nominated a candidate—Upstate Jobs took in $88,000 but spent only $48,891,

leaving it with net assets of $39,109. App’x 56, 220. Babinec acknowledged a

similar “expense pattern” in 2019. Babinec Depo. at 82–83, Ex. A to Pl.’s

Statement of Material Facts, Dist. Ct. Dkt. 56-3. A 2018 tax form also stated that

each of Upstate Jobs’ three directors only worked an average of one hour per week.

App’x 220. The fact that Upstate Jobs did not spend all of its funds does not

necessarily imply that a law limiting its ability to obtain more funding does not

burden its First Amendment rights. See generally Cruz, 596 U.S. at 318 (Kagan, J.,

dissenting) (“[E]very contribution regulation has some kind of indirect effect on

electoral speech[.]”). Nevertheless, when considered together with the lack of

any record evidence of Upstate Jobs’s plan to expand, or the expected costs of such

expansion, the noted financial surplus substantially undermines Babinec’s bare

assertion that UJP would have spent more housekeeping funds but for the

challenged laws. See App’x 105–06.

62 That does not end the inquiry, however, because even though the state need

not use the least restrictive means to serve its anticorruption interest, the question

of whether a regulation “unnecessar[ily] abridge[s]” First Amendment rights

requires consideration of less restrictive alternatives to ensure that it is

“reasonable” and “in proportion to the interest served.” McCutcheon,

(internal quotation marks omitted). Arguing that less restrictive alternatives

were available here, UJP relies on Green Party I, in which we struck down

Connecticut’s complete ban on contributions by state contractors, lobbyists, and

their families on the basis that a total contribution ban “utterly eliminates an

individual’s right to express his or her support for a candidate by contributing

money to the candidate’s cause.”

. We reasoned in that case that

“if the state’s interests . . . can be achieved by means of a limit on lobbyist

contributions, rather than a ban, the ban should be struck down for failing ‘to

avoid unnecessary abridgement of associational freedoms.’”

(quoting Buckley,

).

This case, in fact, exposes the flaw in UJP’s attempt to frame the challenged

provision as a ban. The fact that the housekeeping exception lifts the cap on

contributions to parties has no effect on independent bodies’ ability to receive

63 donations up to the cap applicable to them. Contributors may give up to $9,000

to independent bodies supporting a candidate for statewide office—which money

can be used for various purposes, including housekeeping. As already

explained, adopting UJP’s suggestion that New York establish a separate, higher

limit for housekeeping account contributions to independent bodies would be

tantamount to raising the general contribution limits. Determining appropriate

contribution limits, however, is an issue best left for state legislatures. See

Randall,

(“[W]e have no scalpel to probe each possible contribution

level . . . the legislature is better equipped to make such empirical judgments . . . .”

(internal quotation marks and citation omitted)).

The other three alternatives UJP proposes to lessen the burden on First

Amendment rights while still serving the state’s anticorruption interest fare no

better. The first—that New York could simply regulate independent bodies as

parties—is plainly flawed. Requiring all independent bodies, inter alia, to

establish committees in every county and election district in the state, to utilize

prescribed procedures for filling party leadership positions, and to notify the State

Board of changes in committee composition, among other things, would be far

more burdensome than the challenged restrictions. Indeed, this proposal could

64 make it impossible for grassroots political organizations to operate, effectively

regulating independent bodies out of existence.

Second, UJP suggests that New York could require independent bodies to

disclose all funds that go in and out of their housekeeping accounts. This

proposal runs into the same problem as it did in the context of UJP’s challenge to

the contribution limits. Although disclosure may serve some deterrent effect, it

does not cure the corruption risk associated with permitting unlimited individual

contributions to exceedingly small political organizations.

UJP’s third proposal to establish anti-proliferation statutes, which would

“prohibit[] individuals from establishing Independent Bodies when those

individuals are connected to either Parties or other Independent Bodies,” Upstate

Jobs Party, 559 F. Supp. 3d. at 113, is likewise insufficient to demonstrate that the

housekeeping rule is not closely drawn. Anti-proliferation statutes might

prevent corruption among independent bodies from metastasizing. But they

would not address the source of the corruption risk inherent in allowing donors

to funnel unlimited sums to tightly controlled independent bodies.

65 In sum, because New York’s housekeeping account rule is closely drawn to

serve the state’s interest in preventing quid pro quo corruption or the appearance

thereof, it survives First Amendment scrutiny.

CONCLUSION

For the foregoing reasons, we vacate the district court’s judgment in part

and affirm in part. We VACATE the part of the district court’s judgment that

granted summary judgment to UJP on its First and Fourteenth Amendment claims

relating to New York’s contribution limits and REMAND to the district court with

the instruction that summary judgment be entered in favor of the State Board as

to these claims. We AFFIRM as to the part of the district court’s judgment that

granted summary judgment to the State Board on First and Fourteenth

Amendment claims concerning New York’s housekeeping account rule.

66