On appeal from Department of the Treasury.
The opinion of the court was delivered by: Skillman, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman, Winkelstein and LeWinn.
This appeal presents a challenge to the constitutionality of a 2005 amendment to the Campaign Contributions and Expenditure Reporting Act, L. 2005, c. 51 (Chapter 51), which prohibits any state agency from awarding a contract with a value over $17,500 to a business entity that has contributed more than $300 during the preceding eighteen months to the Governor, a candidate for Governor or any State or county political party committee. The contractor who brings this challenge made a contribution to a county political committee that would subject the contractor to disqualification from the award of any state contract, but then attempted to avail itself of a section of Chapter 51 that provides an exemption from the disqualification to a contractor who receives reimbursement of a contribution within thirty days. We conclude that Chapter 51 is constitutional and that the Department of Treasury properly rejected the contractor's claim to an exemption from the disqualification because, even though the contractor undertook steps to obtain reimbursement of its disqualifying contribution within thirty days, it did not receive reimbursement within that period.
Appellant Earle Asphalt is engaged in the road construction business. One of its sources of business is state highway construction projects.
In June 2007, former State Senate President John Bennett solicited Walter Earle, II, the president of the appellant company, for a contribution to the Monmouth County Republican Committee (Republican Committee) in exchange for tickets to an August 1, 2007 cocktail party. Earle agreed to make the contribution, and on June 30, 2007, appellant purchased three tickets for $1,500. The Republican Committee cashed appellant's check on July 6, 2007.
On July 18, 2007, T. Robin Visconi, a fundraiser for the Republican Committee, solicited Earle for an additional $2,500 contribution for the same event. Visconi suggested that Earle make the check payable to the election fund of an individual candidate in order to avoid conflict with "pay-to-play" laws.
After reading Visconi's note, Earle became concerned about the company's initial $1,500 contribution. Consequently, he asked his general counsel for an opinion. The general counsel informed Earle that the June 30 contribution was potentially disqualifying. On July 20, 2007, Earle telephoned Bennett to request a refund of the $1,500 contribution.
Earle alleges that he called Bennett multiple times to inquire about the status of the refund, and Bennett alleges that he contacted various Republican Committee officials to expedite the refund. On August 10, 2007, twenty-one days after Earle's initial refund request to Bennett and forty-one days after the $1,500 contribution, the Republican Committee issued appellant a refund check for $1,500. Bennett attributed the delay in refund of the contribution to "several layers of individuals that were involved[,]" noting that the Republican Committee "does not have a full time Treasurer nor a full time fundraiser."
Thereafter, appellant submitted a bid to the New Jersey Department of Transportation (DOT) for the award of a contract for roadwork on a section of Interstate 195. After the DOT notified appellant that it had submitted the low bid and was therefore entitled to award of the contract, appellant submitted to the Department of Treasury the "Contractor Certification and Disclosure of Political Contributions" form required under Chapter 51. This form disclosed the June 30, 2007 contribution appellant had made to the Republican Committee.
On January 23, 2008, the Department of Treasury informed appellant that, following a review by the Chapter 51 Review Unit, it was found to be disqualified from award of the Interstate 195 contract. That same day, appellant's counsel sent a letter to the Acting Director of the Division of Purchase & Property within the Treasury Department requesting her to restore appellant's eligibility because it had promptly requested a refund of the contribution and received the refund shortly thereafter.
In a February 4, 2008 letter, the Acting Director declined appellant's request for reinstatement. The Acting Director concluded that it was clear on the face of the statute establishing the exemption from the Chapter 51 disqualification that "the refund must be received within 30 days of the contribution[,]" and that "although the request for reimbursement was arguably made by Earle within the 30-day timeframe, the actual refund was not received . . . until approximately ten days after the 30-day period expired."
Appellant attempted to appeal the Acting Director's decision to the Acting Treasurer. However, the Acting Director notified appellant by letter dated February 6, 2008 that the Acting Treasurer had delegated authority to her to render a final decision and that she found "no basis to overturn [her] prior decision."
Appellant filed a notice of appeal from the Acting Director's final decision and moved for an emergent stay pending the outcome of the appeal. We granted appellant's motion for a stay and accelerated the appeal.
Thereafter, appellant filed a motion to supplement the record with certifications from Walter Earle, II, former Senator Bennett and Michael Lombardi, who is appellant's General Counsel. We now grant the motion and have considered the Earle, Bennett and Lombardi certifications in reviewing this appeal.
On appeal, appellant argues that Chapter 51 violates its constitutional rights of free speech and association. Appellant also argues that even if Chapter 51 is constitutional, its request for return of the contribution to the Republican Committee entitled it to the statutory exemption from the disqualification from bidding on State contracts afforded when reimbursement of a contribution is received within thirty days.
We first address appellant's argument that Chapter 51 violates its rights of free speech and association protected by the First Amendment of the United States Constitution.*fn1
The State argues that we should not consider this argument because appellant did not challenge the constitutionality of Chapter 51 in the proceedings before the Treasury Department resulting in its disqualification from bidding on State contracts. However, an administrative agency does not have jurisdiction to rule upon a facial challenge to the constitutionality of the statute under which it operates. See Abbott v. Burke, 100 N.J. 269, 299 (1985); Stubaus v. Whitman, 339 N.J. Super. 38, 62 (App. Div. 2001), certif. denied, 171 N.J. 442 (2002); see also Johnson v. Robison, 415 U.S. 361, 368, 94 S.Ct. 1160, 1166, 39 L.Ed. 2d 389, 398 (1974) (noting that "adjudication of the constitutionality of congressional enactments has generally been thought beyond the jurisdiction of administrative agencies"). Therefore, Earle's claim that Chapter 51 violates its constitutional rights to free speech and association is properly before us even though it is raised for the first time on appeal.
Statutes limiting political contributions are considered to raise more substantial questions of freedom of association than of speech because "[t]he quantity of communication by the contributor does not increase perceptibly with the size of his contribution, since the expression rests solely on the undifferentiated, symbolic act of contributing." Buckley v. Valeo, 424 U.S. 1, 21, 96 S.Ct. 612, 635, 46 L.Ed. 2d 659, 689 (1976). For this reason, "a contribution limitation surviving a claim of associational abridgement would survive a speech challenge as well[.]" Nixon v. Shrink Mo. Gov't PAC, 528 U.S. 377, 388, 120 S.Ct. 897, 904, 145 L.Ed. 2d 886, 899 (2000). Therefore, the alleged abridgment of the right of political association is the focus of any First Amendment challenge to the validity of a statute that limits political contributions. See McConnell v. Fed. Election Comm'n, 540 U.S. 93, 135, 124 S.Ct. 619, 656, 157 L.Ed. 2d 491, 543 (2003); Nixon, supra, 528 U.S. at 388, 126 S.Ct. at 904-05, 145 L.Ed. 2d at 898-99.
"[W]hen reviewing Congress' decision to enact contribution limits, 'there is no place for a strong presumption against constitutionality, of the sort often thought to accompany the words "strict scrutiny."'" McConnell, supra, 540 U.S. at 137, 124 S.Ct. at 656, 157 L.Ed. 2d at 544 (quoting Nixon, supra, 528 U.S. at 400, 120 S.Ct. at 911, 145 L.Ed. 2d at 906 (Breyer, J., concurring)). Instead, a statute limiting political contributions will be sustained "if the State demonstrates a sufficiently important interest and employs means ...