UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

VOICE OF TEACHER EDUCATION / COMMITTEE

ON POLITICAL EDUCATION, ANDREW
PALLOTTA, as Treasurer of Voice of Teacher
Education/Committee on Political Education, NEW
YORK STATE UNITED TEACHERS, and RICHARD
C. IANNUZZI, as President of New York State United
Teachers,

Plaintiffs,

-against ­ Civil Action No.

NEW YORK STATE BOARD OF ELECTIONS,

J AMES A. WALSH, as co-chair of the New York

State Board of Elections, DOUGLAS A. KELLNER,

as co-chair of the New York State Board of Elections,

EVELYN 1. AQUILA, as commissioner of the New

York State Board of Elections, and GREGORY P.

PETERSON, as commissioner of the New York State

Board of Elections,

Defendants.

PLAINTIFFS'

MEMORANDUM OF LAW

JAMES R. SANDNER, ESQ.

Attorney for Plaintiffs
Office & P.O. Address
800 Troy-Schenectady Road
Latham, New York 12110
TeL No. 518-213-6000
E-maillTeilly@nysutmail.org

Robert T. Reilly, Esq.

Of Counsel
 TABLE OF CONTENTS

PAGE

PRELIMINARY STATEMENT .................................................. 1

STATEMENT OF FACTS ...................................................... 3

ARGUMENT

POINT I ............................................................... 8

VOTE/COPE AND NYSUT ARE ENTITLED TO A TEMPORARY

RESTRAINING ORDER AND A PRELIMINARY INJUNCTION RESTRAINING
AND ENJOINING DEFENDANTS FROM (1) PROHIDITING VOTE/COPE
FROM MAKING INDEPENDENT EXPENDITURES DIRECTLY, (2) LIMITING
VOTE/COPE'S ABILITY TO MAKE INDEPENDENT EXPENDITURES
INDIRECTLY, (3) PROHIDITING NYSUT FROM COMMUNICATING WITH
ITS MEMBERS REGARDING CANDIDATES OUTSIDE OF ITS REGULAR
PUBLICATIONS TO ITS MEMBERS, AND (4) PLACING PRIOR RESTRAINTS
ON THE ABILITY OF VOTE/COPE AND NYSUT TO ENGAGE IN SPEECH
PROTECTED BY THE CONSTITUTION.

CONCLUSION .............................................................. 18

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 PRELIMINARY STATEMENT

Plaintiffs Voice ofTeacher Education/Committee on Political Education ("VOTE/COPE"),

Andrew Pallotta as treasurer of VOTE/COPE, New York State United Teachers ("NYSUT") and

Richard C. Iannuzzi as president ofNYSUT bring this declaratory judgment action against the New

York State Board ofElections ("Board of Elections") and the four commissioners that comprise the

Board of Elections to declare invalid and enjoin the Board of Election's limitations on plaintiffs'

rights guaranteed under the Constitutions of the United States and New York State to make

expenditures to support or oppose candidates for elected state office in the primary and general

elections.

The First Amendment has its fullest and most urgent application to speech uttered during a

campaign for political office. Laws that burden political speech are subject to strict scrutiny, which

requires the government to prove that the restriction furthers a compelling interest and is narrowly

tailored to achieve that interest. Defendants' actions cannot withstand such scrutiny.

Defendants prohibit political action committees such as VOTE/COPE from making any

independent expenditures at all supporting or opposing candidates for state elected office. In effect,

the Board ofElections bans outright political action committees such as VOTE/COPE from making

independent expenditures directly.

Also, the Board of Elections subjects contributions made to political committees that make

only independent expenditures to the contribution limits in the Election Law. Thus, not only are

political action committees banned from making independent expenditures directly, but also from

making independent expenditures indirectly, to the extent that those independent expenditures

exceed the applicable contribution limits.

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own members to support or oppose candidates for state elected office to including such

endorsements in their regular communications with members, unless they register with the Board

of Elections as political committees, list the candidates they intend to support or oppose and file

committee authorization status forms all prior to engaging in such speech. In effect, unions must

delay communicating with their own members until their next regular publication, if any, is due and

unions are banned from speaking with their own members outside the context of their regular

publications, unless they first comply with a prior restraint on speech.

Plaintiffs allege that the bans, delays and limitations described herein that VOTE/COPE and

NYSUT are subjected to by the Board of Elections place severe and unconstitutional burdens on

VOTE/COPE's right to make independent expenditures and NYSUT's right to communicate with

its members regarding the support or opposition of candidates for state elected offices. Plaintiffs

seek preliminary relief, as they wish to support and oppose candidates in the primary election being

held on September 14,2010 and the general elections being held on November 2,2010. The last day

for a voter to postmark an application for an absentee ballot is September 7, 2010.

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 ST ATEMENT OF FACTS

Political Action Committees

The Board of Elections prohibits VOTE/COPE as a "political action committee" from

making any independent expenditures to support or oppose candidates for election to state office.

(Reilly Affidavit '1~20-28).

Independent Expenditure Onlv Committees

The Board ofElections allows so-called "unauthorized committees" (which are unauthorized

in the sense that the candidate on whose behalf the committee makes expenditures did not authorize

the committee) to make independent expenditures without limitation. (Reilly Aff. ~~34-39).

The Board of Elections, however, subjects contributions to such unauthorized committees

that only make independent expenditures to the limitations on contributions set forth in the election

law. (Reilly Aff. ~~36-40). For example, were VOTE/COPE to establish an unauthorized committee

to make independent expenditures to support the candidacy of Bill Perkins in the September 14,

2010 primary election for his state senate seat, VOTE/COPE would be limited to contributing a total

of $6,000 to such committee. (Reilly Aff. ~~39-40).

But VOTE/COPE intends to expend more than $6,000 to support Mr. Perkins by way of

polling, canvassing, direct mail, phone calling and a get out the vote ("GOTV") drive. (Reilly Aff.

~'141-41). In fact, $6,000 would not cover the cost of the polling, let alone any other part of the

independent expenditure campaign. (Reilly Aff. ~~41-42).

Union Member Communications

The Board of Elections may "deem" a union to be a political committee if the union makes

expenditures to support or oppose candidates for elected office, including such expenditures made

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in the course of speaking with its own members. (Reilly Aff. ';~43-48).

The Board of Elections distinguishes between contributions and expenditures. (Reilly Aff.

';~13-18). The Board of Elections will not "deem" a union to be a political committee solely because

it makes contributions. (Reilly Aff. ~'j45-48). According to the Board ofElections "ifa union places

an endorsement in a publication of its own union which it distributes to its membership on a regular

basis, it would not be considered to be a contribution" or an expenditure, as the union would not

have expended any additional funds on the publication since it would have issued the publication

regardless of the endorsement. (Reilly Aff. '1~46-48). According to the Board of Elections, if a

union either circulates a special edition of its own publication to endorse a candidate or pays for a

separate literature which is enclosed with its regularly distributed union publication -- and the

candidate or the candidate's committee reports the payment as a "contribution in-kind" from the

union -- it would be considered to be a contribution, not an expenditure; and such contribution would

not cause the union be to "deemed" to be a political committee by the Board of Elections. (Reilly

Aff. 46-48).

If, however, the candidate or candidate's committee does not report the union's expenditures

as "contributions in-kind," those expenditures would not be considered to be contributions and the

union would be "deemed" by the Board of Elections to be a political committee which has made

expenditures on behalf ofor against a candidate. (Reilly Aff. ':';46-48). The union will have violated

the campaign finance provisions ofthe Election Law ifit had not registered as a political committee,

listed the candidates it intended to support or oppose and file committee authorization status forms

all prior to making such expenditures. (Reilly Aff. ~r';46-48).

Under a Board of Elections's advisory opinion, a union qua union can support or oppose

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candidates only in its regular publications to members. (Reilly Aff. ~~46-48). A union newsletter

published to members on a monthly basis would be an example of such regular publication.

(Complaint '170-71). According to the Board of Elections, in those situations where the next

publication date of such newsletter is not on the horizon or where the last published newsletter

before the election already has been published and the election has not yet been held, the union

would be effectively precluded from speaking with its own members in support or opposition to

candidates for state elected office. (Complaint ~~70-71).

NYSUT intends to communicate with its members regarding candidates in the 20 10 primary

and general elections for state elected offices. (Complaint ~72). NYSUT publishes newsletters to

its membership; and, starting with the 2010-2011 academic year, those newsletters will be published

on a monthly basis. (Reilly Aff. ~~49-50). For example, NYSUT intends to communicate with its

own members to support the election of Bill Perkins in his primary election for state senate.

(Complaint CT~72-74). Were NYSUT to communicate with its own members outside the context of

its regular publications, such as its monthly newsletter, to support the primary election of Bill

Perkins, and were Mr. Perkins to not report the expense for such communication as a contribution

in-kind, the Board of Elections would deem NYSUT to be a political committee. (Complaint ~~T75-

76). Unless NYSUT had previously registered with the Board ofElections as a political committee,

filed a statement with the Board ofElections stating that it intended to support Bill Perkins, and filed

a statement stating whether or not Mr. Perkins authorized the committee the Board would find that

NYSUT had violated the Election Law. (Complaint '1~75-76).

Prior Restraint on Speech

Political committees must register and file statements with the Board of Elections before

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making any contributions or expenditures. (Reilly Aff. ,-r';SS-S6). The Board of Elections requires

all political committees except "political action committees" (and "constituted committees" not

relevant here) to list the names of the candidates they support or oppose and to file committee

authorization status forms prior to making any contributions or expenditures on their behalf. (Reilly

Aff. ,-rSS). Pursuant to section 14-118 of the Election Law, each political committee (except a

"constituted committee" not relevant here) must file with the Board of Elections a statement

including "the candidate or candidates or ballot proposal or proposals the success or defeat ofwhich

the committee is to aid or take part" and a committee authorization status form. (Reilly Aff. ,-rSS).

The Board of Elections excepts political action committees from that requirement because

section 14-118 also states that "a political committee which makes no expenditures, other than in

the form ofcontributions, shall not be required to list the candidates being supported or opposed by

such committee." (Reilly Aff. ~:S8).

According to the Board of Elections, if a committee required to file a statement listing "the

candidate or candidates or ballot proposal or proposals the success or defeat ofwhich the committee

is to aid or take part" does not file such statement prior to making any contributions or expenditures,

that committee violates the campaign finance provisions of the Election Law. (Complaint ,-rS9)

Were VOTE/COPE to establish an "unauthorized committee" to make independent expenditures,

it would need to file a statement with the Board of Elections listing "the candidate or candidates or

ballot proposal or proposals the success or defeat of which the committee is to aid or take part" and

file a committee authorization status form before it could make any independent expenditures on

behalf of those candidates or ballot proposals. (Complaint ';60). Were NYSUT to register as a

political committee or be "deemed" by the Board of Elections to be a political committee it would

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need to file a statement with the Board of Elections listing "the candidate or candidates or ballot

proposal or proposals the success or defeat of which the committee is to aid or take part" and file a

committee authorization status form before making any independent expenditures on behalf ofthose

candidates or ballot proposals. (Complaint ~6l).

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 POINT I

VOTE/COPE AND NYSUT ARE ENTITLED TO A TEMPORARY

RESTRAINING ORDER AND A PRELIMINARY INJUNCTION RESTRAINING
AND ENJOINING DEFENDANTS FROM (1) PROHIBITING VOTE/COPE
FROM MAKING INDEPENDENT EXPENDITURES DIRECTLY, (2) LIMITING
VOTE/COPE'S ABILITY TO MAKE INDEPENDENT EXPENDITURES
INDIRECTLY, (3) PROHIBITING NYSUT FROM COMMUNICATING WITH
ITS MEMBERS REGARDING CANDIDATES OUTSIDE OF ITS REGULAR
PUBLICATIONS TO ITS MEMBERS, AND (4)PLACINGPRlORRESTRAINTS
ON THE ABILITY OF VOTE/COPE AND NYSUT TO ENGAGE IN SPEECH
PROTECTED BY THE CONSTITUTION

The standard of review applicable to applications for temporary restraining orders and

motions for preliminary injunctions is well-established. "The moving party must show (l)

irreparable harm and (2) either (a) likelihood of success on the merits or (b) sufficiently serious

questions going to the merits and a balance of hardships tipping decidedly toward the party seeking

injunctive relief." Kermaniv. New York State Bd. ofElections, 487 F.Supp.2d 101, 106 (N.D.N.V.

2006).

1. Irreparable Harm

The First Amendment has its fullest and most urgent application to speech uttered during a

campaign for political office. Citizens' United v. Federal Election Comm 'n, U.S._,_,130

S.Ct. 876, 913 (2010). Limits on independent expenditures have a chilling effect extending well

beyond the government's interest in preventing quidpro quo corruption. Citizens' United, 130 S.Ct.

at 908. And, "[r]estricting spontaneous political expression places a severe burden on political

speech because as the Supreme Court has observed, timing is of the essence in politics and when an

event occurs, it is often necessary to have one's voice heard promptly, ifit is to be considered at all."

Arizona Right to Life Political Action Comm. v. Bayless, 320 F .3d 1002, 1008 (9 th Cir. 2003 )(internal

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quotation marks omitted).

"In matters involving allegations or claims ofFirst Amendment violations, irreparable harm

may be presumed." Kermani, 487 F.Supp.2d at 107. In the instant case, not only may irreparable

harm be presumed, but also irreparable harm is evident from the facts.

Defendants have irreparably harmed VOTE/COPE by banning it from making independent

expenditures directly and by limiting it from making independent expenditures indirectly.

Defendants' prohibition on VOTE/COPE as a political action committees from making any

independent expenditures is a complete ban on speech. VOTE/COPE is effectively muzzled with

respect to the upcoming primary and general elections with respect to speaking through the use of

independent expenditures.

In addition, the harm to VOTE/COPE caused by defendants ban on its ability to make

independent expenditures as a "political action committee" would not be cured by forcing

VOTE/COPE to establish and register an "unauthorized committee" to make independent

expenditures. See, Citizens' United, 130 S.Ct. at 897 (201 O)(the statute was a ban on corporate

speech notwithstanding that a PAC created by the corporation could still speak). A "political action

committee" is a "different animal" from the other types of political committees identified by the

Board of Elections, such as "unauthorized committees." See, Kermani, 487 F.Supp.2d atl04, FN

4 (a political action committee was a "different animal" from the political committee at issue). Any

contributions VOTE/COPE were to make to such unauthorized committee, according to the Board

ofElections, would be limited by the contribution limitations in Election Law, thus severely limiting

the ability of VOTE/COPE and such "unauthorized committee" to make independent expenditures.

For example, if VOTE/COPE were to establish an unauthorized committee to make independent

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expenditures supporting Bill Perkins in his primary election for state senate, VOTE/COPE would

be limited to making a $6,000 contribution to such committee.

NYSUT also has been irreparably harmed by the Board of Elections because it prevents

NYSUT from engaging in spontaneous political speech. NYSUT is effectively prohibited from

speaking with its members about candidates outside of its regular communications, unless it risks

being "deemed" to be a political committee by the Board of Elections. If it were to make such

communications outside its regular publications, unless it already had registered and filed statements

with the Board ofElections as a political committee, NYSUTwould have violated the Election Law,

in the Board's view, and be subject to civil and criminal penalties.

And, any political committee coming into being, either as an "an unauthorized committee"

established by VOTE/COPE or by NYSUT being "deemed" to be a political committee by the Board

of Elections, would need to have registered with the Board of Elections, listed those candidates it

intended to support or oppose, and filed committee authorization status forms all before being

permitted to make any expenditures. They, thus, would be subject to a prior restraint on speech and

be prohibited from engaging in spontaneous political speech.

2. Likelihood of Success on the Merits

Defendants' Prohibition on PAC Independent Expenditures is Invalid

Expenditure limitations are subject to strict scrutiny, which requires the government to prove

that the restriction furthers a compelling interest and is narrowly tailored to achieve that interest.

Long Beach Area Chamber of Commerce v. City ofLong Beach, 603 F.3d 684, 691-92 (9 th Cir.

2010). Defendants' actions cannot withstand such strict scrutiny. The Board of Elections cannot

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set itself up as "a First Amendment traffic cop." See, Arizona Right to Life Political Action Comm.,

320 F.3d at 1014 (statute putting state in the role of a First Amendment traffic cop was

unconstitutional regulation of speech),' See also, Clear Channel Outdoor, Inc. v. City ofNew York,

608 F. Supp.2d 477,508. (S.D.N.Y. 2009) ("The New York Court of Appeals has stated that the

State Constitution's free speech clause 'contains language that is more expansive than its Federal

counterpart' and we have at times interpreted it in a manner that is more protective offree expression

than the First Amendment to the Federal Constitution.").

Defendants prohibit VOTE/COPE as a political action committee from making any

independent expenditures.

But, limitations on independent expenditures are unconstitutional. Long Beach Area

Chamber ofCommerce v. City ofLong Beach, 603 F.3d 684; Kermani 487 F.Supp.2d at 695; see

also, Avella v. Batt, 33 A.D.3d 77, 84, 820 N.Y.S.2d 332, 339-40 (3d Dep't 2006)(invalidating

expenditure prohibitions imposed on political parties by Election Law §2-126). P ACs can make

such independent expenditures. Long Beach Area Chamber ofCommerce, 603 F .3d at 696 (9 th Cir.

2010). Surely, if a corporation can use its treasury funds to make independent expenditures to

support or oppose candidates for federal elective office, a "political action committee" under New

York law can make independent expenditures to support or oppose candidates for state office. See,

Citizens' United, 130 S.Ct. at 913 (restrictions on corporate independent expenditures are invalid).

Independent expenditures do not give rise to corruption or the appearance of corruption.

Citizens United, 130 S.Ct. at 909. "Limits on independent expenditures have a chilling effect

extending well beyond the government's interest in preventing quid pro quo corruption." Id. at 908.

Here, the Board cannot prove that its restriction furthers a compelling interest and is narrowly

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tailored to achieve that interest.

In Citizens United the Supreme Court held that government cannot prohibit a corporation

from making independent expenditures because the only interest the government has regarding

campaign finance is the prevention of quid pro quo corruption, and there is no quid pro quo

corruption with independent expenditures. Id. According to the Supreme Court '''[t]he absence of

prearrangement and coordination of an expenditure with the candidate or his agent not only

undermines the value of the expenditure to the candidate, but also alleviates the danger that

expenditures will be given as a quid pro quo for improper commitments from the candidate. '" Id.

lfthe Federal Election Commission under FECA cannot limit independent expenditures, the Board

of Elections under the Election Law cannot limit independent expenditures, either.

In Citizens United the Supreme Court found that a corporation has the same rights under the

First Amendment to support or oppose candidates as does any other person or organization. Citizens

United, 130 S.Ct. at 913. A "political action committee," a fortiori, has First Amendment rights at

least as great as a corporation to support ofoppose candidates by making independent expenditures.

See, Long Beach Area Chamber ofCommerce ,603 F.3d at 695,696. (PACs can make independent

expenditures).

VOTE/COPE is registered with the Board of Elections as a "political action committee."

The Board's rule is that "political action committees" under New York law can only make

contributions and cannot make independent expenditures. That rule, however, is invalid under

Citizens United. VOTE/COPE, as a "political action committee," can make independent

expenditures under the First Amendment. See, Long Beach Area Chamber ofCommerce, 603 F.3d

at 695-96.(PACs can make independent expenditures).

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 Furthermore, the Board's rule preclude's only "political action committees" from making

independent expenditures; it allows other types of "political committees" to make independent

expenditures. The concept that the government may restrict the speech of some elements of our

society in order to enhance te relative voice of others is wholly foreign to the First Amendment.

Arizona Right to Life Political Action Comm., 320 F.3d at 1014 (quotation marks, punctuation and

internal citations omitted).

Contributions to Independent Expenditure Committees

Similarly, were a "political action committee" to establish an "unauthorized committee" (a

"political committee" not authorized by the candidate it supports) to make only independent

expenditures, the "political action committee's" contributions to such "unauthorized committee"

could not be subject to the limitations on contributions set forth in the Election Law. See,

SpeechNow.Org v. Fed Election Comm 'n, 599 F.3d 686,696 (D.C. Cir. 2010)(contribution limits

violated the First Amendment by preve nting donations to an independent expenditure only

committee in excess ofthe limitations); see, Long Beach Area Chamber a/Commerce, 603 F .3d at

695. (limitations on contributions to independent expenditure only committee unlawful),' see,

Emily's List v. FEC, 581 F .3d 1, 10 (2009)("Ifthe Fist Amendment prohibits any limitation on how

much money an independent political committee can spend on an independent-expenditure

campaign, how can it permit limits on donation s to committees that make only independent

expenditures?")

The Board's rule is that an "unauthorized committee" (committee not authorized by the

candidate it supports) can make unlimited independent expenditures, but that any contributions to

such "unauthorized committee" are limited by the contribution limitations in the Election Law. For

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example, were VOTE/COPE to establish and register an "unauthorized committee," although such

"unauthorized committee" could make unlimited independent expenditures, the contributions

VOTE/COPE could make to that committee to fund the committee would be limited, in a primary

election, to $6,000 for each senate candidate supported and $3,800 for each assembly candidate

supported.

But, contributions made to a committee that makes only independent expenditures cannot

be limited for the same reasons that independent expenditures themselves cannot be limited.

SpeechNow.Org, 599 F.3d at 692-93. Although Buckley v. Valeo. 424 U.S. 1 (1976), upheld

limitations on contributions in certain circumstances, contribution limitations nevertheless place a

burden on speech. Jd. "[C]ontribution limits still do implicate fundamental First Amendment

interests." Jd. at 692. "When the government attempts to regulate the financing of political

campaigns and express advocacy through contribution limits it must have a countervailing interest

that outweighs the limit's burden on the exercise of First Amendment rights." Jd. "The Supreme

Court has recognized only one interest sufficiently important to outweigh the First Amendment

interests implicated by contributions for political speech: preventing corruption of the appearance

of corruption." Jd. Limits on contributions to a committee that makes only independent

expenditures cannot stand. Jd.

Union Member Communications

Likewise, a union should not be limited in its ability to speak with its own members about

the candidates it endorses to only its regular communications or risk being deemed to be a political

committee which would need to register with the Board, declare the candidates it intends to support

or oppose and file committee authorization status forms all prior to engaging in any such speech.

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See, Arizona Right to Life Political Action Comm., 320 F .3d at 1006.(restricting spontaneous

political expression places a severe burden on political speech).

Built-in delay mechanisms prevent the timely exercise of First Amendment rights and

prohibit spontaneous political expression. Id. at 1008. "To suggest that the waiting period is

minimal ignores the reality of breakneck political campaigning and the importance of getting the

message out in a timely, or, in some cases, even instantaneous manner." Id.

Prior Restraints On Speech

The Board's rule is that an "unauthorized committee" must name the candidates it intends

to support or oppose and file committee authorization status forms at the time it registers with the

Board, and the "unauthorized committee" cannot make any contributions or independent

expenditures until after it does so. Thus, such "unauthorized committee must declare who it intends

to support or oppose and file committee authorization forms before it will be permitted to make any

independent expenditures. This rule would apply regardless of whether the "unauthorized

committee" was established intentionally, for example by a "political action committee" or

unintentionally by an organization, such as a union, who is deemed by the Board of Elections to be

a political committee for having communicated with its own members outside of its regular

publications to support or oppose candidates. Such rule is invalid as it is a prior restraint on speech.

With political speech, time is of the essence. Id. In this era of such things as the internet,

e-mail, YouTube, FaceBook, text-messaging and Twitter, participants in political discourse must be

ready to speak instantaneously. Any delay in speech may mean that their voice does not get heard

in a meaningful way. Id.

"First Amendment reflects a profound national commitment to the principle that debate on

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public issues should be uninhibited, robust, and wide-open." Id. (internal quotation marks omitted).

According to the court, the statute's '" built-in delay mechanism' prevents the timely exercise ofFirst

Amendment rights and prohibits spontaneous political expression." !d. In its discussion of the

various reasons why the statute violated the First Amendment, the court noted that "the delay

mandated by the notice requirement places a severe burden on speech because it 'may even preclude

expression necessary to provide an immediate response to late-breaking events. '" Id. at 1009.

Balance of the Equities

Plaintiffs respectfully submit that they have established a likelihood ofsuccess on the merits.

Assuming for the sake of argument that plaintiffs have not shown a likelihood of success on the

merits but have shown sufficiently serious questions going to the merits, a balance of the hardships

tips decidedly toward the plaintiffs.

On the one hand, this case concerns the rights ofVOTE/COPE and NYSUT to engage in

speech under the "fullest and most urgent" application of the First Amendment political speech.

On the other hand, this case concerns the Board's interest in preventing corruption or the appearance

of corruption in elections.

But, with respect to the Board of Elections limits on independent expenditures, according to

the Supreme Court "'[t]he absence of prearrangement and coordination of an expenditure with the

candidate or his agent not only undermines the value of the expenditure to the candidate, but also

alleviates the danger that expenditures will be given as a quid pro quo for improper commitments

from the candidate. '" Citizens' United at 908.

And, with respect to the Board ofElections rules limiting a union's ability to communication

with its members to its regular publications unless and until it first registers as a political committee,

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lists the candidates it will support or oppose and file committee authorization forms all before

engaging in political speech, such built-in delay mechanisms prevent the timely exercise of First

Amendment rights and prohibit spontaneous political expression. Arizona Right to Life Political

Action Committee, 320 F.3d at 1008.

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 CONCLUSION

For the reasons set forth above Plaintiffs' application for a temporary restraining order and

motion for preliminary injunction should be granted.

Dated: August (i;, 2010 Respectfully submitted,

JAMES R. SANDNER, ESQ.

Attorney for Plaintiffs
Office & P.O. Address
800 Troy-Schenectady Road '.
Latham, New York 12110
Tel. No. 518-213-6000

By:
Robert T. Reilly, Esq.
Of Counsel

89120/cwl141

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