PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

__________

No. 18

- 3325

__________
PASQUALE T. DEON, SR.;
MAGGIE HARDY MAGERKO

v.

DAVID M. BARASCH; KEVIN F. O ’ TOOLE; RICHARD G. JEWELL; SEAN LOGAN; KATHY M. MANDERINO; WILLIAM H. RYAN, JR., Member, PA Gaming Control Board, in his official capacity; DANTE SANTONI, JR., Member, PA Gaming Control Board, in his official capacity; PAUL MAURO, Director, PA Gaming Control Board ’ s Bureau of Investigation and Enforceme nt, in his official capacity; CYRUS PITRE, Director, PA Gaming Control
Board ’ s Office of Enforcement Counsel, in his official capacity; ATTORNEY GENERAL PENNSYLVANIA;

MERRITT C. REITZEL,

Appellants

__________
On Appeal from the United States District Court
for the Middle District of Pennsylvania2 (District Court Civil No. 1

- 17

- cv

- 01454 ) District Judge: Honorable Sylvia H. Rambo

Argued June 11, 2019

BEFORE: JORDAN

, BIBAS

, and NYGAARD

, Circuit Ju dges

(Filed May 29, 2020 )

Howard G. Hopkirk [Argued] Office of Attorney General of Pennsylvania Strawberry Square Harrisburg, PA 17120

Counsel for Appellant, David M. Barasch

Ilana H. Eisenstein
Ben C. Fabens

- Lassen Courtney G. Saleski DLA Piper
1650 Market Street One Liberty Place, Suite 5000 Philadelphia, PA 19103

John J. Hamill [Argued] DLA Piper 444 West Lake Street, Suite 900 Chicago, IL 606063 Timothy J. Lowry DLA Piper
17 Gordon ’ s Alley Atlantic City, NJ 08401

Jesse C. Medlong Amanda L. Morgan DLA Piper 555 Mission Street, Suite 2400 San Francisco, CA 94105

Counsel for Appellee , Pasquale T. Deon, Sr.

Lee K. Goldfarb
Alexander W. Saksen Gordon Rees Scully Mansukhani 707 Grant Street, Suite 3800 Pittsburgh, PA 15219

Counsel for Appellee, Maggie Hardy Magerko

William W. Warren, Jr. Saul Ewing Arnstein & Lehr
2 North Second Street Penn National Insurance Plaza, 7th Floor Harrisburg, PA 17101

Counsel for Amicus Appellants, Campaign Legal Center and Common Cause

Burt M. Rublin Ballard Spahr4 1735 Market Street, 51st Floor Philadelphia, PA 19103

Counsel for Amicus Appellees, Penn National Gaming, Inc. and Mountainview Thoroughbred Racing Association, Inc.

Michael M. Miller Kevin M. Skjoldal
Eckert Seamans Cherin & Mellott 213 Market Street, 8th Floor Harrisburg, PA 17101

Counsel for Amicus Appellees, Downs Racing, Greenwood Gaming and Entertainment, and Stadium Casino, LLC

__________

OPINION OF THE COURT

__________

NYGAARD, Circuit Judge

.

Section 1513 of the Pennsylvania Race H orse Development and Gaming Act 1 prevents appellees Pasquale T. Deon, Sr. (“Deon”) and Maggie Hardy Magerko (“Hardy”) from making any political contributions because they hold interests in businesses that have gaming licenses. They sued

1 4 Pa. Con s . Stat. § 1101 et seq. (2010).5 the Gaming Board 2 and the Attorney General of Pennsylvania (collectively “the Commonwealth”) claiming First Amendment and Equal Protection violations. The District
Court concluded “that Section 1513 of the Gaming Act furthers
a substa ntially important state interest” in preventing quid pro

quo corruption. 3 But it ruled that the restriction it imposes on political contributions is unconstitutional because the Commonwealth did not draw it closely enough. It granted summary judgment in favor of Deon and Hardy , permanently enjoining enforcement of this section of the Act. 4

2 Deon and Hardy sued Appellants in their official capacities. Appellant David M. Barasch, Richard G. Jewell, Sean Logan, Kathy M. Manderino, Merritt C. Reitzel, Obra S. Kernodle, IV and Dante Santoni Jr. are members of the Gaming Board. Appellant Kevin F. O’Toole is the Executive Directo r of the Board. Appellant Paul Mauro is the Director of the Board’s Bureau of Investigation and Enforcement. Appellant Cyrus Pitre is the Director of the Board’s Office of Enforcement Counsel. Appellant Josh Shapiro is the Attorney General of the
Commonwea lth of Pennsylvania. The appellants are charged with enforcing S ection 1513 of the Gaming Act. See 4 Pa.
C ons

. S tat . §§ 1202, 1517(a.1), 1517(a.2), 1517(c.1).

3 Deon v. Barasch, 341 F. Supp. 3d 438, 454 (M.D. Pa. 2018)

. But, referencing Nixon v. Shrink Missouri Gov ’ t. PAC , 528 U.S. 377 (2000) , it recognized that “there may be cause for some increased scrutiny of the legislature’s determination,” and concluded that the Commonwealth “failed to show a heightened justifica tion for political contribution restrictions analogous to the government contracting and lobbying industries.” Id. at 443

- 44.

4 Id

. at 454. We must also pause here to note and complement the District Judge on her thorough examination of the evidence6 The Commonwealth say s the District Court erred
because Se ction 1513 is a cr itical element of a robust effort to prevent well

- documented corruption in the gaming industry from taking root in Pennsylvania

. T h e y contend that the District Court’s order will make it impossible to take proactive steps to protect against a known threat to its integrity

.

It is axiomatic that a democratic government must make every effort to fight corruption, and the perception of it, to protect the integrity of its electoral

, legislative

, and regulatory

processes. But when it act s it must be mindful of the fundamental speech and associational rights guaranteed by the
First Amendment of the United States Constitution at stake

. 5

W e conclude that the District Court did not err and we will
af firm the order.

I.

A

.

The Contribution Restriction

. In 2004, t he Gaming Ac t legalized casinos and racehorse tracks in Pennsylvania . It also
established the Gaming Control Board

, task ing it with regulat ing the industr y and issu ing slot machine licenses.
Section 1513 imposes a political contribution restriction

.

pres ented, and the scholarship with which she developed an d applied the law.

5 See McCutcheon v. Federal Election Com m ’n , 572 U.S. 185, 218 (2014).7 The following persons shall be prohibited from contributing any money or in

- kind contribution to a
candidate for nomination or election to any public office in this
Common wealth, or to any political party committee or other political
committee in this Commonwealth or to any group, committee or association organized in support of a candidate, political party committee or other political
committee in this Commonwealth: (1) An applicant for a slot machine license, manufacturer license, supplier license, principal license, key employee license, interactive gaming license or horse or harness racing license. (2) A slot machine licensee, licensed manufacturer, licensed supplier, in teractive gaming operator or licensed racing entity. (3) A licensed principal or licensed key employee of a slot machine licensee, licensed manufacturer, licensed supplier, interactive gaming operator or licensed racing entity. (4) An affiliate, intermedia ry, subsidiary or holding company of a slot machine licensee, licensed manufacturer, licensed supplier, interactive gaming operator or8 licensed racing entity. (5) A licensed principal or licensed key employee of an affiliate, intermediary, subsidiary or holding company of a slot machine licensee, licensed manufacturer, licensed supplier, interactive gaming operator or licensed racing entity. (6) A person who holds a similar gaming license in another jurisdiction and the affiliates,
intermedi aries, subsidiaries, holding companies, principals or key employees thereof. 6

The Commonwealth intended the political contribution
restriction in Section 1513 ( in the original language of the Act )

to “prevent the actual or appearance of corruption that may
result from large campaign contributions; ensure the bipartisan administration of this part; and avoid actions that may erode public confidence in the system of representative government

. ” 7 But a casino owner sued and successfully

argu ed that this restriction violated Free Speech rights

g uaranteed by the Pennsylvania Constitution

. 8 T he Pennsylvania Supreme Court ruled:

Here, we have found a wholesale banning of political contributions

6 4 Pa. Con. Stat. § 1513 (2010)

. 7 4 Pa. Con. Stat. § 1102 (2004 ).

8 DePaul v. Com monwealth

, 969 A.2d 536 (Pa. 2009) ; Pa.
C onst

. a rt. 1, § 7.9 to be impermissible when read in light of th e legislative purpose of addressing the impact of large contributions on public confidence and trust. In this context, it is apparent that the scope of the impermissible effects, i.e., the banning of small contributions and/or contributions unlikely to
af fect public confidence, is quite
substantial. 9

So Pennsylvania lawmakers amended the Act to read as follow s :

The General Assembly has a

compelling interest in protecting the integrity of both the electoral process and the legislative process by preventing corruption and the

appearance of corruption which may arise through permitting any type of political campaign
contributions by certain persons involved in the gaming industry and regulated under this part. Banning all types of political campaign contributions by certain persons subject to this part is necessary to prevent corruption and the appearance of corrupti on

9 DePaul , 969 A.2d

. at 553.10 that may arise when political campaign contributions and gaming regulated under this part are intermingled. It is necessary to maintain the integrity of the regulatory control and legislative oversight over the operation and play of slot machines, tabl e games and interactive gaming in this Commonwealth; to ensure the bipartisan administration of this part; and avoid actions that may erode public confidence in the system of representative government. 10

Lawmakers left the restriction in Section 1513 intac t , changing
instead the focus of the statement of legislative intent from

“ large contributions ” to “all types of political contributions.”
Th at language remains today

.

B.

Applicability

. Deon is a shareholder of Sands Pennsylvania Inc., and it owns 90 percent of privately held Sands Bethworks Gaming LLC (“Sands”). Section 1513 impose s political contribution restrictions on an array of people
and entities with financial interests in gaming industry operations

. 11 The portion of Section 1513 relevant to Deon is

10 4 Pa. Con s . Stat. § 1102 ( a mended 2010, Jan. 7, P.L. 1, No. 1, § 1, imd.) (emphas e s added).

11 § 1513(a).11 the application of the restriction to a “ licensed principal

. . . of
a slot machine licensee

. ” 12 The term “ p rincipal” 13 is defined

as “[a] n officer; director; person who directly holds a beneficial interest in or ownership of the securities of an applicant or licensee; person who has a controlling interest in an applicant or licensee, or has the ability to elect a majority of the board of
directors of a licensee or to otherwise con trol a licen see

. . . . ” 14
Sands has held a “ Category 2 ” slot machine license since
2005. 15 Deon has a “controlling interest” in Sands under the Act and has been licensed as a principal since it obtained its
license.

As for Hardy, Section 1325(d)(1) of the Gaming Act states the following: “ N o trust or similar business entity shall be eligible to hold any beneficial interest in a licensed entity under this part unless each trustee, grantor and beneficiary of the trust, including a minor child beneficiary, qualifies for and is granted a license as a principal.” 16 Hardy is the beneficiary
of a tr ust that owns Nemacolin Woodlands, Inc. (“Nemacolin”) Nemacolin owns the privately held Woodlands

12 Id.

13 Consistent with the District Cour t we refer to Deon and Hardy as “principals” and not “key employee qualifier

, ” a title previously used in reference to them. See Deon, 341 F. Supp.
3d at 440 n. 1 (citing 2006 Pa. Legis. Serv. Act 2006

- 135 (S.B. 862) (Nov. 1, 2006); 37 Pa. Bull. 2808 (June 23, 2007 )).

14 § 1103

. 15 A Category 2 license authorizes operation of slot machines
in a stand

- alone facility. § 1513(a ) ( 2 ) ; see Riverwalk Casino,
LP v. Pennsylvania Gaming Control Bd

. , 926 A.2d 926, 930 (Pa. 2007)

. 16 4 Pa. Con s . Stat. § 1325(d)(1).12 Fayette, LLC. which has a “ Category 3 ” slot machine license. 17 Hardy has been licensed as a principal since the Pennsylvania Supreme Court confirmed approval of Nemacolin’s license.
N o one disputes that Section 1513 applies to either Deon or Hardy

.

C.

The Constitutional Harm

. Deon and Hardy claim the
Section 1513 restriction on political contributions significantly
i nfringe s on their political speech. Deon portrays himself as a politically engaged citizen and says he regularly contributed to candidates from 1978 until the Gaming Act in 2004 became law, prevent ing him from continuing to do so. 18 Similarly, Hardy made political contributions up through the time she obtained a Gaming Act license

. She has made none since then

. I f either violate s Section 1513 they c an be charged with a third

degree misdemeanor, causing a fine of no less than $100,000
and a suspension of their licens e . The suspension lengthen s

w ith each violation up to and revocation of the license. 19

Because of this Deon and Hardy requested declaratory and injunctive relief

. T hey say Section 1513 infringes their associational rights (and the right of similarly situated gaming

17 A Category 3 license authorizes operation of slot machines
in a hotel or resort. § 1513(a )(5); see Riverwalk Casino, LP

. , 926 A.2d at 930

. 18 Deon made a political contribution in 2009, after the Pennsylvania Supreme Court enjoined § 1513. He has made

no contributions since the Commonwealth amended the Gaming Act in 2010.

19 § 1513(c).13 license applicants, licensees and principles of licensees)

, protected by the First Amendment of the United States
Con stitution

. 20 They also claim that Section 1513 violates the Equal Protection Clause of the Fourteenth Amendment. 21 T he
District Court granted summary judgment in their favor on the
First Amendment claim , enjoining Section 1513

.

I I.

A. 22

P articipating in the election of our governmental representative s is the essence of our democracy

, and so political expression enjoys broad protection under the First
Amendment “to assure [the] unfettered interchange of ideas for the bringing about of polit ical and social changes desired by the people. ” 23 T h e protection of free expression through speech and political association under the First Amendment
extends to “ [s] pending for political ends and contributing to

20 U.S. C onst . amend. I.

21 U.S. C onst . amend. XIV, § 1

. 22 The District Court had jurisdiction under 28 U.S.C. § 1331 and we have jurisdiction under 28 U.S.C. § 1291. We review orders granting summary judgment de novo. Adams Outdoor
Advert

. L td. P ’ ship by Adams Outdoor GP, LLC v. Pennsylvania Dep ’ t of Transp

. , 930 F.3d 199, 205 (3d Cir. 2019). As for the injunction, we review the District Court’s “fashioning of a remedy according to an abuse of discretion
standard. ” Anderson v. Davila , 125 F.3d 148, 159 (3d Cir. 1997).

23 Buckley v. Valeo , 424 U.S. 1, 14 (1976 ) (quoting Roth v.
United States , 354 U.S. 476, 484 (1957)).14 political candidates .” 24 As a result, whe n government restricts political contributions to fulfill another obligation

— in this

case, its sacred duty to protect our democratic institutions from corruption

— it has a corresponding burden to prov e the constitutionality of th os e measures. 25 But there are some
distinctions.

Limitations on campaign expenditures are subject to strict scrutiny

— meaning the government must prove that the regulations promote a “compelling interest” and are the “least restrictive means to further the articulated interest.” 26 But restricting a person ’s contributions to a candidate or political
committee “ impose [s] a lesser restraint on political speech

. ” 27
“C ontributions lie closer to the edges than to the core of political expression.” 28 As a result, we apply intermediate scrutiny to political contribution restrictions : a “lesser but ‘still rigorous standard of review

. ’” 29 With that said, “ [e] ven a

‘ sign ificant interference with protected rights of political
association ’ may be sustained if the State demonstrates a

24 Fed. Election Comm ’ n. v. Colorado Republican Fed. Campaign Comm ’n ., 533 U.S. 431, 440 (2001)

. 25 See McCutcheon , 572 U.S. at 210.

26 Id. at 197.

27 Id

. 28 Fed. Election Comm ’ n. v. Beaumont , 539 U.S . 146, 161 (2003).

29 McCutcheon , 572 U.S. at 197 (quoting Buckley , 424 U.S. at 29). But see Beaumont , 539 U.S. at 147

- 48 (“[R] estrictions on political contributions have long been treated as marginal speech restrictions subject to relatively complaisant First
Amendment review .”); see also Corren v. Condos , 898 F.3d 209, 222

– 23 (2d Cir. 2018).15 sufficiently important interest and employs means closely drawn to avoid unnecessary abridgment of associational
freedoms. ” 30

B.

Traditionally, courts have “not second

- guess[ed] a legislative determination as to the need for prophylactic measures where corruption is the evil feared.” 31 It was ov er forty years ago that the Buckley court examined restrictions on large political contri bution s in the Federal Election Campaign Act (FECA) 32 and held this is “the narrow aspect of political association where the actuality and potential for corruption have been identified.” 33 Buckl e y ’ s finding

— that the threat posed by corrupt political contributions was “not an illusory
one” 34

—has endured. T wenty years after Buck l ey the Court
said that lawmakers’ suspicions about corrupt intent behind

30 Buckley , 424 U.S. at 25 (quoting, Cousins v. Wigoda , 419
U.S. 477 , 488 (1975) (internal quotation marks excluded) ) ; see also McCutcheon

, 572 U.S. at 19 7

. 31 Fed. Election Comm ’ n. v. Nat ’ l. Right to Work Comm ., 459 U.S. 197, 210 (1982)

. 32 5 2 U.S.C. § § 30101

- 126.

33 Buckley

, 424 U.S. at 28. The Court reflected on the “deeply disturbing examples” of political campaign corruption,
detail ed by the Court of Appeals for the District of Columbia,
that surfaced after the 1972 election . Id. at 27

. A nd it decided from this that “the weighty interests served by restricting the size of financial contributions to political candidates are sufficient to justify the limited effect upon First Amendment freedoms caused by the . . . contribution ceiling.” Id

. at 29

. 34 Id. at 27.16 large political contributions “is neither novel nor implausible.” 35 More recently, the Court r ejected aggregate
contribution limits in FECA 36 but noted: FECA’s “base limits . . . [serve] the permissible objective of combatting corruption.” 37

But though the path blazed by Buckley legitimiz ing
these restrictions is long, it is not very broad

. T he only anti

corruption interest identified by the Court thus far as sufficient

to justify political contributions restrictions is the fight against financial quid pro quo

— “dollars for political favors”

— or the public percepti o n of it

. 38 Buckley does not exten d to restrictions that just “ limit the appearance of mere influence or

access. ” 39 S o when a restriction on political contributions
enacted to fight corruption is challenged

, part of the government ’s burden to justify the law is to show that it

35 Shrink Missouri Gov ’ t. PAC , 528 U.S. at 391

. To the extent
that Shrink Missouri refers to influence

- based corruption, it is no longer good law. See SpeechNow.org v. Fed. Election
Comm ’ n ., 599 F.3d 686 (D.C. Cir. 2010 ) (en banc).

36 5 2 U.S.C. § 30117 (a)(1) (formerly 2 U.S.C. § 441(a)(1)).

37 McCutcheon , 572 U.S. at 192. “[B]ase limits [ restrict ] how much money a donor may contribute to a particular candidate or committee.” Id. (citing § 441(a)(1))

. 38 See i d. at 192 (quoting Fed. Election Commn. v. Nat ’ l.
Conservative Political Action Comm ’n ., 470 U.S. 480, 497 (1985)); Citizens United v. Fed. Election Commn. , 558 U.S. 310, 359 (2010) (“When Buckley identified a sufficiently important governmental interest in preventing corruption or the appearance of corru ption, that interest was limited to quid pro

quo corruption.”).

39 McCutcheon , 572 U.S. at 208.17 address es quid pro quo corruption

, or the appearance of i t. 40
And it must do so with more than “mere conjecture.” 41

The Commonwealth argues that Section 1513 is designed to address quid pro quo corruption. But w e need not
decide whether it has shown this sufficiently important interest because, even if it has, we conclude that Section 1513 is not closely drawn to achieve that interest.

C

.
While recognizing that combatting corruption is a sufficiently important interest, t he District Court aptly said that
this interest “does not license the legislature to enact any palliative measure, regardless of its restrictiveness.” 42 “ [ A ] statute that seeks to regulate campaign contributions could itself prove an obstacle t o the very electoral fairness it seeks to promote.” 43 Th us , c ourts have to “exercise . . . independent judicial judgment” when “danger signs” arise that a restriction reaches an “outer limit[]

. ” 44 In such cases we “must review the
record independently and carefully with an eye toward assessing the statute’s ‘tailoring.’” 45

40 See Shrink Missouri , 528 U.S. at 391

– 92; see also Citizens
United , 558 U.S. at 359.

41 McCutcheon , 572 U.S. at 210 (quoting Shrink Missouri , 528
U.S. at 392).

42 Deon , 341 F. Supp. 3d at 451.

43 Randall v. Sorrell, 548 U.S. 230, 249 (2006)

. 44 Id

. 45 Id.18 The parties dispute whether strict or intermediate scrutiny applies here. But even if we apply a “lesser but still

‘ rigorous’” 46 intermediate threshold by examining wh ether the
statute is “closely drawn” the Commonwealth still does not meet its burden. Under that standard, the law need not be the
least restrictive means available. 47 W e ask , instead, whether the government has made its case that the scope of the provisi on is “‘in proportion to the interest served.’” 48 “Fit
matters.” 49

The McCutcheon court examined assertions that aggregate contribution limits were necessary to prevent
circumvention of base limits. In its analysis of “fit” it said the following:

[ T ] he cited sources do not provide

any real

- world examples of
circumvention of the base limits along the lines of the various hypotheticals. The dearth of FEC

46 McCutcheon , 572 U.S. at 197 (quoting Buckley , 424 U.S. at 29).

47 See McCutcheon , 572 U.S. at 218.

48 Id. at 218 (quoting Board of Tr s of State Univ. of N.Y. v. Fox

, 492 U.S. 469, 480 (1989) and In re R.M.J ., 455 U.S. 191 (1982)) ; see Fox, 492 U.S. at 480 (“[A] fit that is not necessarily perfect, but reasonable; that represents not necessarily the single best disposition but one whose s cope is ‘in proportion to the interest served,’ ... that employs not necessarily the least restrictive means but . . . a means narrowly tailored to achieve the desired objective.” ).

49 McCutcheon , 572 U.S. at 218.19 prosecutions, according to the dissent, proves only that people are getting away with it. And the violations that surely must be out there elude detection “because in the real world, the methods of achieving circumvention are more subtle and more complex” than the hypothetical examples. This sort of

sp eculation, however, cannot justify the substantial intrusion on First Amendment rights at issue in
this case. 50

From this it concluded:

Based on what we can discern from experience, the
indiscriminate ban on all contributions above the aggregate limits is disproportionate to the
Government ’ s interest in preventing circumvention. The Government has not given us any reason to believe that parties or candidates would dramatically shift their priorities if the aggregate limits were lifted.” 51

50 Id. at 217

– 18.

51 Id. at 220.20 The phra se s “real

- world” and “[b] ased on what we can discern from experience ” provide a window into the nature of this step in the analysis. The government cannot meet its burden at either st e p by asserting mere conjecture. But the Court in
McCutcheon demonstrated a strong interest in linking, at this second step, the law under review to the practical circumstances it is designed to impact. For that reason

, we are

assess ing “fit” here by taking a much closer look at Section
1513 in t he context of the “ real world” th at it addresses.

The Court noted in Randall that “[a] s compared with . .

. contribution limits upheld by the Court in the past, and with those in force in other States, [the Act’s political contribution] limits are sufficiently low as to generate suspicion that they are not closely drawn.” 52 Notably, t he breadth of the prohibition imposed here goes far beyond th at considered in Randall

. Section 1513 imposes a flat ban on all types of contributions,

no ma tter how small. It forbids any form of contribution, not just money, but also contracts, loans, or “any valuable thing.” 53
And it has no de minimis threshold for contribution amount.
Unlike in Buckley , contributors in the Commonwealth cannot make even sym bolic expressions of support “through a small contribution” under Section 1513. 54 Moreover , the ban applies
to all beneficiaries of a trust that holds “any beneficial interest” in a gaming licensee

. 55 As the District Court noted “ a contribution of a single dollar from the beneficiary of a trust that owns a minority stake in a holding company that, in turn, owns a gaming licensee ” is prevented under Section 1513. The

52 Id

. 53 4 Cons. Stat § 1513(a)

. 54 Buckley , 424 U.S. at 24.

55 4 Pa. Cons. Stat §1325(d)(1)

.21 same is true for banks that underwrite licensees and out

- of

state gaming licensees. 56 Finally, t he ban applies to all politicians, public officials, and political organizations in the
Commonwealth.

Such a far

- reaching restriction may prevent political
contributions from being a source of quid

- pro

- quo corruption

. And w e respect all legi slative determinations on measures to
address this critical problem

. B ut t he burden these restrictions impose on First Amendment rights demands that we have some way to “exercise . . . independent judicial judgment” to
determine whether Section 1513 is cl osely drawn to be a proportional response. 57

T he record the Commonwealth created directs us to the corruption memorialized in two cases from New Jersey and
Louisiana to understand the “real world” that Section 1513
addresses. 58 Th e record in these cases , the Commonwealth’s logic goes

, will inexorably lead us to the same conclusions that
those courts reached: that it is “ necessary to distance gaming

56 4 Pa. Cons. Stat. §§ 1103, 1513(a)(5) and (6).

57 Randall , 548 U.S. at 249

. 58 Petition of Soto , 565 A.2d 1088. 1093 (N.J. Super. App. Div. 1989) ; Ass’n of Louisiana v. State ex rel. Foste r, 820 So.2d 494 (LA. 2002). One indication that the history in New Jersey
factored into the enactment of Section 1513 is that State Representative Schroder read a portion of the DePaul opinion (quoted above) , which quoted Petition of Soto

, into the legislative record as lawmakers debated the amendment to the Gaming Act in 2009. Pennsylvania House Journals, 2009 Reg. Sess. No. 103 (10/5/2009) at 2102

- 03 (quoting DePaul v.
Com ., 969 A.2d at 545 and Petition of Soto , 565 A.2d at 1093).22 interests from the ability to contribute to candidates and political committees which support candidates

, ” 59 and that “there is no viable alternative [to restrict ing all political
contributions ] to prevent the appearance of, or actual, corruption of the political process.” 60 Th e Commonwealth contends this is the inevitable upshot because g aming

- indu stry

related “pay for play” is a function of “human nature

, ” 61 making the necessity of prohibiting even de minimis
contributions “common sense.” 62

There are a couple of problems with this

. T he
Commonwealth presumes that the records developed in Petition of Soto and State ex rel. Foster support a judg ment that a total prohibition of political contributions is a proportional

response. But even if they could support it, other states with legalized gaming similar to Pennsylvania

— beyond New Jersey and Louisiana

— have taken a much different approach

. The Commonwealth never addresses this.

At present

, a total of t wenty

- f ive states (including Pennsylvania) have some form of legalized commercial, non

tribal casino gambli ng (including so

- called “racinos” and riverboats). 63 T he District Court found in its own review , as

59 State ex rel. Foster , 820 So. 2d at 508

. 60 Petition of Soto , 565 A.2d at 109 8

. 61 Reply Brief p. 6.

62 Reply Brief p. 12.

63 See Arkansas ( A R . Const. A mend. 100, § § 1 to 1 1; Ark. Code § § 23

- 113

- 101 to 113

- 604); Colorado (Colo. Rev. Stat. § § 44

- 30

- 101 to 836); Delaware (Del. Code tit. 29, § § 4801 to 4838); Florida (Fla. Stat. § § 849.01 to .46); Illinois ( 230 Ill. Comp. Stat. Ann. 40/1 to 40/85); Indiana ( Ind. Code Ann. § 4

-23 the Pennsylvania Supreme Court did eight years earlier, that
bans with the scope and breadth of Section 1513 are not

common among these states

. 64 We have reached the same
conclusion

. In fact

, t he overwhelming majority of s tates with commercial, non

- tribal casino gambling like Pennsylvania do not have any political contribution restrictions that apply specifically to gaming in dustry

- related parties. 65 In these

33

- 10

- 2.1 ); Iowa (Iowa Code Ann. § 99F.6 ); Kansas ( Kan. Stat. Ann. § § 74

- 8701 to 8780) ; Louisiana (La. Stat. § § 27:1 to

: 502) ; Maine (Me. Rev. Stat. tit. 8, § § 1001 to 1072); Maryland (Md. State Gov’t Code. § 9

- 1A

- 01 to 38); Massachusetts (Mass. Gen. Laws ch. 23K, § § to 71; 205 Code Mass. Regs. 108.01); Michigan (Mich. Comp. Laws § § 432.1 to 516; Mich. Comp. Laws § 432.207b (Repealed by P.A.2019, No. 158, § 1, Imd. Eff. Dec. 20, 2019)); Mississippi ( Miss. Code § § 75

- 76

- 1

to 325); Missouri ( Mo. Rev. Stat. Ann. § § 313.004 to 313.850);
Nevada ( Nev. Rev. Stat. Ann. § § 462 to 467); New Jersey (N.J. Stat. Ann. § 5:12

- 138); New Mexico (N.M. Stat. Ann. § § 60

- 2E

- 1 to 60

- 2E

- 62); New York (N.Y. Rac. Pari

- Mut. Wag. & Breed. Law § § 100 to 1410 (McKinney)); Ohio ( Ohio Rev.
Cod e § § 3772.01 to 3772.99); Oklahoma (Okla. Stat. Ann. tit. 3A, § § 200 to 20); Pennsylvania, ( 4 Pa. Cons. Stat. § § 1101 to 1904, § 1513); Rhode Island ( 42 R.I. Gen. Laws Ann. § § 42

- 61

- 1 to 17); South Dakota (S.D. Codified Laws § § 42

- 7B

- 1 to 42

- 7B

- 75); West V irginia (W. Va. Code Ann. § § 29

- 22A

- 1 to 22E).

64 Deon, 341 F. Supp. 3d at 445 n. 2.

65 These states do have laws applying to the general population that prohibit political contributions over a particular threshold. In our own review we found that, of the twenty

- five states with legalized casino gambling (including racinos and riverboats), nineteen do not impose any special restrictions on the political24 contributions of gaming industry

- related parties. Instead, they have generally applicable political contributions limits. See
Alabama ( Ala. Code § 17

- 5

- 1 to 21 ) ; Colorado

, ( Colo. Const.
Ar t. XXVIII; 8 Colo. Code Regs. § 1505

- 6 ) ; Delaware ( Del. Code Ann. tit. 15, §§ 8001, 8010 and 8012 ) ; Florida ( Fla. Stat. §§ 106.011 and 106.08 ) ; Illinois ( 10 Ill. Comp. Stat. 5/9

- 8.5 );
Kansas ( Kan. Stat. Ann. §§ 25

- 4143 and 25

- 4153 ) ; Maine ( Me. Rev. Stat. tit. 21

- A, § 1015 ) ; Maryland ( Md. Code Ann., Elec. Law §§ 13

- 226 and 13

- 227 ) ; Michiga n ( Mich. Comp. Laws §§ 169.24 1 , 169.252 and 169.254 ); Mississipp i ( Miss. Code Ann. §§ 23

- 15

- 1021 and 97

- 13

- 15 ) ; Missour i ( Mo. Rev. Stat. § 130.029 and 130.031 ) ; Neva d a ( Nev. Const. art. 2 § 10; Nev. Rev. Stat. § 294A.100 ) ; New Mexi co ( N.M. Stat. Ann. §
1

- 1 9

- 34 ) ; New York ( N.Y. Elec. Law § 14

- 114 ) ; Ohio ( Ohio Rev. Code Ann. §§ 3517.102, 3517.104 and 3599.03 ) ; Oklahoma ( Okla. St

. Ethics Commission, Rule 2.17 ) Rhode
Islan d ( R.I. Gen. Laws § § 17

- 25

- 10.1 and 17

- 25

- 12 ) ; South
Dakota ( S.D. Codified Laws §§ 12

- 27

- 7 and 12

- 27

- 8 ) ; West Virgini a ( W. Va. Code §§ 3

- 8

- 5c, 3

- 8

- 8

– 3

- 8

- 12 ). The remaining six states (Indiana, Iowa, Louisiana, Massachusetts, New Jersey and Pennsylv ania) impose political contribution bans on gaming industry

- related parties . B ut just three of these

states (Louisiana, Massachusetts and New Jersey) have implemented a ban of comparable scope to Pennsylvania. Iowa restricts “qualified sponsoring” organi zations from making contributions, (Iowa Code Ann. § 99F.6)

. Indiana imposes a ban on a “licensee or a person with an interest in a licensee” from contributing to “a member of a precinct committee” to induce the member of the precinct committee to do any act or refrain from doing any act with respect to the approval of a local public question under IC 4

- 33

- 6

- 19 or IC 4

-25 nineteen states, even accounting for political contribution laws that apply to the ir entire population s , 66 none ban all political contributions by such partie s

. This fatally undermine s the Commonwealth’s central premise that the nature of gaming

industry

- related corruption creates a “common sense” need t o adopt measures of the breadth of Section 1513

. This is the
result because , e ven if we a s sum e arguendo that findings like
those in Petition of Soto and/or State ex rel. Foster c ould support a judgment that Section 1513 is closely drawn , the
Commonwealth would need to show far more than it has done
here to meet its burden

.

These nineteen states, combined with the
Commonw ealth, create a tautolog y : all things being equal, allowing som e political contribution ( even a symbolic de
minimis one ) is less burdensome on First Amendment rights than allowing no political contribution at all

. And although t he Commonwealth need not adopt the least restrictive means to address gaming

- related corruption , it must prove that it has
created a proportional, closely drawn scheme to address the
issue.

Perhaps t he Commonwealth is accurately asserting that

, like New Je rsey and Louisiana, the presence of the gaming industry within its borders creates the need for a law with the
breadth of Section 1513. But the inescapable fact here is that
the experience of nineteen other states with commercial, non

tribal casinos has n ot generated a similar legislative judgment

. And because these schemes place less of a burden on First

33

- 6

- 19.3.” Ind. Code Ann. § 4

- 33

- 10

- 2.5. These bans are more limited in scope.

66 Id

.26 Amendment rights, the Commonwealth

— at a minimum

— had the burden of showing why the experiences of New Jersey and Louisiana provide a better basis to asse ss the proportionality of
Section 1513 than one of these other states. It reli es on the histories and legislative judgments of two states with similar
laws to make its case here. But it does so without reference to

states that have taken different approaches less burdensome to First Amendment rights

.

T he Commonwealth’s implicit appeal to “common sense” as a surrogate for evidence in support of its far

- reaching regulatory scheme is noteworthy in this evidence

- based inquiry

, particularly in light of the approach taken by most other similarly situated states

. Our assessment of fit is meaningless unless we can be sure that it is fixed to a reasonable understanding of the real world that Pennsylvania
faces. Ultimately, t h is dearth of evidence is why the
Commonwealth f

a ll s well short of its burden to show that Section 1513 is closely drawn

. Like the District Court, we do not conclude that it is impossible for the Commonwealth to
defend the proportionality of its law . We only conclude that it
has failed to give us enough information to assess it here. This
failure is dispositive. 67

D.

For all of these reasons we conclude that the
Commonwealth has not met its burden of proving that Section

67 Deon and Hardy also claim that Section 1513

uncons titutionally bans contributions to independent expenditure groups. As we conclude that the law is unconstitutional on other grounds, we do not reach this issue.27 1513 is a closely drawn , proportional response consistent with

an important anti

- corruption interest. Accordingly, we will
affirm the order of the District Court.