srcc_letter.pdf

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EXHIBIT 2

ILED: NEW YORK COUNTY CLERK 10/29/2013 INDEX NO. 159965/

YSCEF DOC. NO. 6 RECEIVED NYSCEF: 10/29/


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October 21, 2013

Confidential Treatment Requested

BY E-MAIL

Danya Perry, Esq.

Chief of Investigations

Commission to Investigate Public Corruption

90 Church Street, 15th Floor

New York, NY 10007

Re: Subpoena Duces Tecum to New York State Senate RepublicanCampaign CommitteeHousekeeping

Dear Ms. Perry:

We write on behalf of our client, the New York State Senate RepublicanCampaign Committee (Committee), in response to the Commission to Investigate Public

Corruptions (Commission) subpoena duces tecum seeking documents related to the

Committees housekeeping account. Pursuant to CPLR Section 2304, and for the reasons stated

below, we respectfully request that the Commission withdraw its subpoena of the Committeeshousekeeping account records and communications.

The Committee received the Commissions subpoena on September 20, 2013. As

you know, the subpoena called for production of documents by September 30, 2013, but the

Committee and the Commission mutually agreed to extend that deadline to October 30, with arolling production to begin by September 30.

On September 30, 2013, the Committee responded fully to Request Nos. 1 and 3

of the subpoena, producing documents that consisted exclusively of an organizational chart of

Committee employees and publicly filed reports of the Committees expenditures related to the

maintenance of a permanent party headquarters and payment of permanent staff. The Committeewas already required to fileand has filedreports of its housekeeping accounts receipts and

expenditures with the New York State Board of Elections (SBOE). Those records are

sufficient to identify allof the housekeeping accounts financial transactions, and are available tothe Commission and the public on the SBOEs website.

The Committee has reviewed the remainder of the subpoena, and requests that the

Commission withdraw the remaining requests. As an initial matter, it is not clear that the

Commission has met the conditions precedent to exercising subpoena power. Furthermore, to


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October 21, 2013Page 2

the extent that the subpoena calls for documents not already produced by the Committee, it is

overbroad and burdensome; infringes upon the Committees First Amendment rights of freepolitical expression and association; and reflects that the Commission is operating in a partisan

manner prejudicial to the Committee.

I. The Commission Has Not Shown That The Subpoena Is Within Its Authority.

The Committee is concerned that the Commission does not appear to have

promulgated the necessary procedures and rules to govern the exercise of the powers and

authority given or granted to the Commissioners. Under Governor Cuomos Executive Orderestablishing the Moreland Commission, the Commission is required unanimously to adopt rules

designed to provide transparency while protecting the integrity of the investigation and rights to

privacy.

1

Promulgation of those rules is a predicate to the Commissions subpoena power.

2

The Committee joins in the request of the Senate and Assembly that the Commission make

available its procedures and rules. Absent public release of those procedures and rules, it is not

possible to assess whether the Commissions work will indeed be conducted with transparency,integrity, and respect for privacy, as required by the Governors Executive Order.

II. The Subpoena is Overbroad and Unduly Burdensome.

The Commissions subpoena for Committee documents and communications isoverbroad and unduly burdensome. It includes requests for all financial records, and for

Documents and Communications relating to the 2012 New York State Senate elections. These

requests are sweepingly broad. New York State Senate elections are the very purpose of theCommittees existence. Consequently, the subpoena potentially demands allof the Committees

paper and electronic documents and communications over a nearly two-year period, including an

election year.

The Committee has already produced to the Commission or publicly provided to

the SBOE reports of all of its financial transactions. The Commission has no factual basis forasserting that the voluminous additional materials it seeks are relevant to the investigation.

3

Even if the Commission is within its authority to issue the subpoena, no agency of government

1Executive Order (Gov. Andrew Cuomo) No. 106 (V)(2).

2Id.3

See New York City Dept of Investigation v. Passannante, 148 A.D.2d 101, 104 (1st Dept1989) (if a motion is made to quash an office subpoena it is incumbent upon the issuer to comeforward with a factual basis which establishes the relevancy of the items sought to the subjectmatter of the investigation before a witness will be compelled to comply with the subpoena'smandate) (quoting Virag v. Hynes, 54 N.Y.2d 437, 442 (1981)).


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may conduct an unlimited and general inquisition into the affairs of those within its jurisdiction

solely on the prospect of discovering possible misconduct, especially by means of a subpoenaduces tecum.

4

As discussed below, responding to the Commissions broad requests would be

extremely burdensome. In addition to the administrative burden of producing all or nearly all of

the Committees paper and electronic documents and communications over the course of almosttwo years, the subpoena places undue burdens on the Committees rights of free political

expression and association under the United States and New York State Constitutions.

III. The Subpoena Unnecessarily Abridges the Committees First Amendment Rights of Free

Political Expression and Association.

The Commissions demands for documents reflecting the Committees internal

strategic communications are not only outside the scope of the Commissions authority andirrelevant to its investigation, but also violate the Committees fundamental First Amendment

rights and its free speech and association rights under the New York State Constitution. The

Committee is a political party committee, and the Commission has made an aggressive demand

for that political party committees most sensitive documents and communications related topolitical strategies, goals, and plans. If the Committee is required to turn over to the

Commission allof its documents and communications related to the 2012 electionone of

several far-reaching requeststhe Committees exercise of its right to free political expressionand association, and that of other political party committees in the state, would be chilled.

The Commission seeks the disclosure of sensitive internal political

communications without asserting an adequate relationship to a sufficiently important state

interest.5

There is no factual basis for the Commissions demands, nor are there any allegations

4See Commn on Lobbying v. Simmons, 4 Misc. 3d 749, 754 (Sup. Ct., Albany County 2004)

(determining that although the New York Temporary State Commission on Lobbying clearlyhas the legal authority to issue subpoenas, it failed to satisfy [the] court upon the issues of abasis for the inquisition into the private financial records of [the subpoenaed person] and therelevance of those records.). The court in Simmons emphasized that [i]t is ancient law that noagency of government may conduct an unlimited and general inquisition into the affairs of

persons within its jurisdiction solely on the prospect of possible violations of law beingdiscovered, especially with respect to subpoenas duces tecum. Id. (quotingMatter of GoverlConsulting Corp. v New York Temporary State Commn. on Lobbying, 113 A.D.2d 611, 614 (3dDept 1986) (Mahoney, P.J., dissenting), revd, 68 N.Y.2d 839 (1986) (internal quotationsomitted)).5Local 1814, Intl Longshoremens Assn, AFL-CIO v. Waterfront Commn of New York

Harbor, 667 F.2d 267, 271 (2d Cir. 1981) (Compelled disclosure of First Amendment(continued)


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ofunlawfulactivity by the Committee. While the Commission may disapprove of the fact that

New York law allows political party committees to operate housekeeping accounts that are notsubject to contribution limits, disapproval of existing law is not an adequate basis for intruding

deeply into the most sensitive political communications of a political party. It is apparent from

the sheer breadth of the subpoena that the Committee has not attempted to employ closely drawnmeans to avoid unnecessary abridgement of associational freedoms. In the absence of any

allegation of illegal conduct, much less evidence of it, the Commissions interests in its

investigation are not so compelling that it may undertake a fishing expedition.

In adopting and fine-tuning New Yorks campaign finance disclosure laws, the

State has previously weighed its interest in preventing corruption against the need for compelleddisclosure of political activities. It has struck a careful balance, under which political party

committees must report all receipts and expenditures of their housekeeping accounts to theSBOE, but need not disclose their internal deliberations. The Commissions subpoena wouldupset this careful legislative balance by compelling production of a political party committees

most sensitive, internal political communications and records without due cause.

IV. The Subpoena Is Tainted By Partisan Bias.

Media accounts of the Commissions investigation raise substantial concerns that

its demand for documents is politically motivated and violates the Equal Protection and Due

Process clauses of the Fourteenth Amendment and the New York State Constitution. The newsreports detail several incidents suggesting that the Committee is receiving disfavored treatment

relative to other similarly situated political party committees. These reports call into question the

propriety of the subpoena and the process by which it was issued.

Media stories have indicated that the Executive Branch exerted significant

influence on the Commissions investigation and ordered the Commission to drop plans tosubpoena documents from the New York State Democratic Party

6and other interests connected

protected materials is not permitted unless it is substantially related to a compellinggovernmental interest) (citingBuckley v. Valeo, 424 U.S. 1, 64 (1976));Nicholson v. StateCommn on Judicial Conduct, 50 N.Y.2d 597, 607 (1980) (A proper analysis of interference

with First Amendment rights calls for examination of the degree of interference with the FirstAmendment interests, the strength of the governmental interest justifying the restriction and themeans chosen to prevent the asserted evil.).6

See Kenneth Lovett, Cuomo's anti-corruption panel stops at investigating his own Democraticparty, N.Y. Daily News, Oct. 3, 2013, http://www.nydailynews.com/news/politics/cuomo-anti-corruption-panel-won-probe-party-article-1.1474800; Jesse McKinley & Thomas Kaplan,Cuomos Office Is Said to Rein In Ethics Board He Created, N.Y. Times, Oct. 8, 2013,(continued)


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to the Executive.7

Indeed, several media reports suggest that the Commission initially sought

documents from only the Committee and the New York State Independence Party,8 andreportedly agreed to subpoena the New York State Democratic Party only after the Executive

Branchs involvement in the Commissions operations became public, which had led to public

condemnation of the Commissions partisan nature.9

These media reports are more thantroubling, and they suggest that the Commissions subpoena to the Committee might not have

been issued in good faith. They also raise serious questions concerning whether the Commission

intends to prosecute all of its outstanding subpoenas with equal vigor. Moreover, there is, as ofthis date, no public evidence that the Commission has in fact issued a subpoena to the New York

State Democratic Party.

The subpoena and the process by which it was issued likewise violate the

Committees Equal Protection and Due Process rights under the United States and New YorkState Constitutions. The Commissions initial choice to subpoena only the Committee andIndependence Party, and not the similarly situated Democratic Party, appears to have been based

on irrational, arbitrary, or impermissible motives. The media reports detailing the Executive

Branchs influence over the Commission, and the fact that the Commission, at best, delayedissuing a subpoena to the Democratic Party until the media drew attention to the Commissions

discriminatory behavior, provide reason to believe that both the Commissions process and the

resulting subpoenas reflect arbitrary exercises of government power.

http://www.nytimes.com/2013/10/08/nyregion/cuomos-office-is-said-to-rein-in-ethics-board-he-created.html.

7 See Kenneth Lovett, Gov. Cuomo leans on independent corruption panel, N.Y. Daily News,Sept. 30, 2013, http://www.nydailynews.com/news/politics/gov-cuomo-leans-independent-corruption-panel-article-1.1471258.8

See Cuomos Office Is Said to Rein In Ethics Board He Created,supra n.6.9

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


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* * *

For all of these reasons, the Committee respectfully requests that the Commission

withdraw its remaining requests to the Committee. If you have any questions, please feel free tocontact me or my colleague Robert Kelner at (202) 662-6000.

Sincerely,

Michael Chertoff