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 Enforcement, 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 Pennsylvania
2

(District Court Civil No. 1-17-cv-01454)

District Judge: Honorable Sylvia H. Rambo

Argued June 11, 2019

BEFORE: JORDAN, BIBAS, 

and NYGAARD, Circuit Judges

(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 60606
3

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 Spahr
4

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 Horse 

Development and Gaming Act1 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. Cons. Stat. § 1101 et seq. (2010).
5

the Gaming Board2and 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 substantially 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 Director 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 

Commonwealth of Pennsylvania. The appellants are charged 

with enforcing Section 1513 of the Gaming Act. See 4 Pa. 

Cons. Stat. §§ 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 justification 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 evidence 
6

The Commonwealth says the District Court erred

because Section 1513 is a critical element of a robust effort to 

prevent well-documented corruption in the gaming industry 

from taking root in Pennsylvania. They 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 acts it must be mindful of the 

fundamental speech and associational rights guaranteed by the 

First Amendment of the United States Constitution at stake.

5

 

We conclude that the District Court did not err and we will 

affirm the order.

I.

A.

The Contribution Restriction. In 2004, the Gaming Act 

legalized casinos and racehorse tracks in Pennsylvania. It also 

established the Gaming Control Board, tasking it with 

regulating the industry and issuing slot machine licenses. 

Section 1513 imposes a political contribution restriction.

presented, and the scholarship with which she developed and

applied the law.

5 See McCutcheon v. Federal Election Comm’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 

Commonwealth, 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, interactive 

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, intermediary, subsidiary 

or holding company of a slot 

machine licensee, licensed 

manufacturer, licensed supplier, 

interactive gaming operator or 
8

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, 

intermediaries, 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 

argued that this restriction violated Free Speech rights 

guaranteed by the Pennsylvania Constitution.

8 The 

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

Const. art. 1, § 7.
9

to be impermissible when read in 

light of the 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 

affect public confidence, is quite 

substantial.9

So Pennsylvania lawmakers amended the Act to read as 

follows:

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 corruption 

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, table 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 intact, changing 

instead the focus of the statement of legislative intent from 

“large contributions” to “all types of political contributions.” 

That 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 

imposes 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. Cons. Stat. § 1102 (amended 2010, Jan. 7, P.L. 1, No. 

1, § 1, imd.) (emphases added).

11 § 1513(a).
11

the application of the restriction to a “licensed principal . . . of 

a slot machine licensee.”

12

 The term “principal”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 control a licensee. . . .”

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: “No 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 trust that owns Nemacolin Woodlands, Inc. 

(“Nemacolin”) Nemacolin owns the privately held Woodlands 

12 Id.

13 Consistent with the District Court 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. Cons. 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. 

No 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 

infringes 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, preventing 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. 

If either violates Section 1513 they can be charged with a thirddegree misdemeanor, causing a fine of no less than $100,000 

and a suspension of their license. The suspension lengthens

with each violation up to and revocation of the license.19

Because of this Deon and Hardy requested declaratory 

and injunctive relief. They say Section 1513 infringes their 

associational rights (and the right of similarly situated gaming17 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 

Constitution.

20 They also claim that Section 1513 violates the 

Equal Protection Clause of the Fourteenth Amendment.21 The 

District Court granted summary judgment in their favor on the 

First Amendment claim, enjoining Section 1513.

II.

 A.22

Participating in the election of our governmental 

representatives 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 political and social changes desired by 

the people.”

23

 The 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. Const. amend. I.

21 U.S. Const. 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. Ltd. 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, when 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 prove the 

constitutionality of those 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

 

“Contributions 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 

‘significant 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 over 

forty years ago that the Buckley court examined restrictions on 

large political contributions 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 Buckley’s finding—that the threat 

posed by corrupt political contributions was “not an illusory 

one”34—has endured. Twenty years after Buckley 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 197.

31 Fed. Election Comm’n. v. Nat’l. Right to Work Comm., 459 

U.S. 197, 210 (1982).

32 52 U.S.C. §§ 30101-126.

33 Buckley, 424 U.S. at 28. The Court reflected on the “deeply 

disturbing examples” of political campaign corruption, 

detailed by the Court of Appeals for the District of Columbia, 

that surfaced after the 1972 election. Id. at 27. And 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 rejected aggregate 

contribution limits in FECA36 but noted: FECA’s “base limits 

. . . [serve] the permissible objective of combatting 

corruption.”37

But though the path blazed by Buckley legitimizing

these restrictions is long, it is not very broad. The only anticorruption 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 perception of it.

38 Buckley does not extend to 

restrictions that just “limit the appearance of mere influence or 

access.”

39

 So 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 52 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 id. 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 corruption, that interest was limited to quid pro 

quo corruption.”).

39 McCutcheon, 572 U.S. at 208.
17

addresses quid pro quo corruption, or the appearance of it.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 we 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, the 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 to the very electoral fairness it seeks to 

promote.”43 Thus, courts 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 whether 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 We ask, instead, whether 

the government has made its case that the scope of the 

provision 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 Trs 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 scope 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 

speculation, 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 phrases “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 step 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

assessing “fit” here by taking a much closer look at Section 

1513 in the context of the “real world” that 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, the breadth of the prohibition 

imposed here goes far beyond that considered in Randall. 

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

no matter 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 symbolic 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-ofstate gaming licensees.56 Finally, the 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 we respect all legislative determinations on measures to 

address this critical problem. But the 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 closely drawn to be a 

proportional response. 57 

The 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 The 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. Foster, 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 restricting all political 

contributions] to prevent the appearance of, or actual, 

corruption of the political process.”60 The Commonwealth 

contends this is the inevitable upshot because gaming-industryrelated “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. The 

Commonwealth presumes that the records developed in 

Petition of Soto and State ex rel. Foster support a judgment 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 twenty-five states (including 

Pennsylvania) have some form of legalized commercial, nontribal casino gambling (including so-called “racinos” and 

riverboats).63 The 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 1098.

61 Reply Brief p. 6.

62 Reply Brief p. 12.

63

 See Arkansas (AR. Const. Amend. 100, §§ 1 to 11; 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, the overwhelming majority of states with

commercial, non-tribal casino gambling like Pennsylvania do 

not have any political contribution restrictions that apply 

specifically to gaming industry-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. 

Code §§ 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 Virginia (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 political 
24

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. 

Art. 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); Michigan (Mich. Comp. 

Laws §§ 169.241, 169.252 and 169.254); Mississippi (Miss. 

Code Ann. §§ 23-15-1021 and 97-13-15); Missouri (Mo. Rev. 

Stat. § 130.029 and 130.031); Nevada (Nev. Const. art. 2 § 10; 

Nev. Rev. Stat. § 294A.100); New Mexico (N.M. Stat. Ann. § 

1-19-34); 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 

Island (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 

Virginia (W. Va. Code §§ 3-8-5c, 3-8-8 – 3-8-12). The 

remaining six states (Indiana, Iowa, Louisiana, Massachusetts, 

New Jersey and Pennsylvania) impose political contribution 

bans on gaming industry-related parties. But just three of these 

states (Louisiana, Massachusetts and New Jersey) have 

implemented a ban of comparable scope to Pennsylvania. 

Iowa restricts “qualified sponsoring” organizations 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 their entire populations,

66 none ban all political 

contributions by such parties. This fatally undermines the 

Commonwealth’s central premise that the nature of gamingindustry-related corruption creates a “common sense” need to 

adopt measures of the breadth of Section 1513. This is the

result because, even if we assume arguendo that findings like 

those in Petition of Soto and/or State ex rel. Foster could 

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 

Commonwealth, create a tautology: all things being equal, 

allowing some political contribution (even a symbolic de 

minimis one) is less burdensome on First Amendment rights 

than allowing no political contribution at all. And although the 

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 the Commonwealth is accurately asserting that, 

like New Jersey 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, nontribal casinos has not 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 assess the proportionality of 

Section 1513 than one of these other states. It relies 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. 

The 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, this dearth of evidence is why the

Commonwealth falls 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 

unconstitutionally 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.