Gen. 13] 13

1

 A “contribution” is “the gift, transfer or promise of gift or transfer

of money or other thing of value to any candidate, or the candidate’s

representative, or a representative of any political party or partisan

organization to promote or assist in the promotion of the success or defeat

of any candidate, political party, principal or proposition submitted to a

vote at any election.” Article 33, §1-1(a)(5)(i).

CONSTITUTIONAL LAW

FREEDOM OF SPEECH AND ASSOCIATION ) POLITICAL SPEECH )

EQUAL PROTECTION ) LAW BARRING POLITICAL

CONTRIBUTORS FROM BECOMING CASINO GAMING

LICENSEES IS CONSTITUTIONAL

February 21, 1996

The Honorable Christopher J. McCabe

Maryland Senate

You have requested our opinion on the constitutionality of

Senate Bill 555, “Campaign Contributions ) Casino Gaming.” Our

opinion is that Senate Bill 555 is constitutional. 

I

Scope of Senate Bill 555

Senate Bill 555 would amend the Election Code to add the

following new prohibition: “A person who makes a contribution,

either directly or indirectly, is not eligible to receive from the State

any form of license or permit to conduct casino gaming for a period

3 years from the date the person made the contribution.”1 

We begin by acknowledging some uncertainty about the

intended scope of Senate Bill 555. The term “casino gaming” is not

defined. Under one possible interpretation, the term refers to any

venue where casino games are licensed to be played. For example,

county-licensed “casino nights” are legal in Prince George’s County.

Article 27, §258B(c). A “casino night,” undertaken for the benefit

of certain charitable and civic organizations, is an event “at which
14 [81 Op. Att’y

2

“Casino gaming” of this kind was the subject of this office’s

detailed report to the Joint Executive-Legislative Task Force to Study

Commercial Gaming Activities in Maryland. See J. Joseph Curran, Jr.,

The House Never Loses and Maryland Cannot Win: Why Casino Gaming

is a Bad Idea (October 16, 1995) (hereafter cited as “Casino Gaming

Report”). If the bill is intended to have a broader scope, we suggest that

the term “casino gaming” be defined. If the scope of the bill were

enlarged, the issues discussed in this opinion would require reassessment.

3

 Article 27, §241 prohibits the keeping of “any gaming table or

other place of gambling in this State....” A “gaming table,” under Article

27, §244, includes “[a]ll games, devices and contrivances at which money

or any other thing shall be bet or wagered ....” Slot machines are

separately banned. Article 27, §264B.

card games, wheels of chance, or roulette are played and money

winnings or tokens redeemable and money are awarded as prizes.”

Article 27, §258B(c)(1)(ii). While these events are sporadic, rather

than continuous, each such event includes gambling activity that

might be thought to fall within the term “casino gaming.” 

Yet your letter requesting this opinion describes the bill, of

which you are a co-sponsor, as one rendering contributors “ineligible

to receive a license to operate a casino in Maryland within three

years of the date of the contribution.” You also refer to the

increasing popularity nationally of casino gambling in venues like

“riverboats, or [other] free standing facilities ....” Hence, we shall

assume that Senate Bill 555 means “casino gaming” of the kind

offered by full-scale casinos of the Las Vegas or Atlantic City type:

venues dedicated to a variety of gambling activities, open to the

public nearly continuously, and aimed at drawing large crowds from

a wide market area.2

There is presently no such “casino gaming” in Maryland.3

Under this construction of Senate Bill 555, the bill would affect only

hypothetical future employment possibilities. If casino gaming of

this kind were legalized in the future, then those who made political

contributions would be barred from obtaining a license for three

years after making the contribution. 
Gen. 13] 15

II

Future Employment Restriction

Under Senate Bill 555, someone who makes a political

contribution would thereby lose for three years a particular, albeit

hypothetical, future employment opportunity ) casino gaming

licensee. 

In Attorney General v. Waldron, 289 Md. 683, 426 A.2d 929

(1981), the Court of Appeals held unconstitutional, on equal

protection grounds, a law that prohibited certain judicial retirees

from practicing law. This restriction was variously characterized by

the Court in these strong terms: It imposed a “permanen[t]

preclu[sion] from the practice of [a judge’s] chosen profession”; it

“flatly denied one the right to engage in the practice of the

profession for which he is otherwise qualified”; it “impinged on

“important private rights”; it “deprived ... retired judges ... of the

right to pursue their calling in life”; it “imposed a severe burden”;

and it “denied persons a basic and important right.” 289 Md. at 716,

717, 722, 727, and 727-28.

The Court would, we believe, take a very different view of

Senate Bill 555. Far from being a “chosen profession” for which

someone could be “otherwise qualified,” the occupation subject to

the restriction, casino gaming licensee, does not presently exist. If

it came into being, the ban on licensing of political contributors

would amount to a regulation of entry expressly preserved in

Waldron. 289 Md. at 717. Furthermore, the State interest in

averting the potential effect of casino money on politics, discussed

in more detail in Part III below, would justify the restriction in any

event.
16 [81 Op. Att’y

4

 Some passages in Buckley suggest a lesser First Amendment status

for political contributions, compared to other political activities. See 424

U.S. at 20-21. Because Senate Bill 555 is constitutional even if

contributions are accorded undiluted First Amendment status,we need not

further explore the case law touching on their precise status.

III

First Amendment Considerations 

If the General Assembly legalized casino gaming, Senate Bill

555 would put a licensee to a choice: forgo political contributions or

lose one’s license. In practical effect, the bill would then be a

prohibition on contributions. Any casino gaming licensee would

decline to make contributions so as not to jeopardize this form of

livelihood. Hence, we shall analyze the bill as if it were a flat

prohibition on contributions by licensees in this industry, for that is

its practical effect. 

The making of a political contribution involves the right of free

expression and free association protected under the First

Amendment. Citizens Against Rent Control v. Berkeley, 454 U.S.

290, 299-300 (1981); Buckley v. Valeo, 424 U.S. 1, 5 (1976).4

Moreover, a ban on contributions ) or, here, a penalty for making

contributions that is tantamount to a ban ) is a heavy burden on this

particular manifestation of First Amendment rights. 

Yet, “[n]either the right to associate nor the right to participate

in political activities is absolute ....” United States Civil Service

Comm’n v. National Ass’n of Letter Carriers, 413 U.S. 548, 567

(1973) (upholding Hatch Act restriction on political activities). As

the Supreme Court observed in its decision upholding contribution

limits, “[e]ven a significant interference with protected rights of

political association may be sustained if the State demonstrates a

sufficiently important interest and employs means closely drawn to

avoid unnecessary abridgement of associational freedoms.” Buckley

v. Valeo, 424 U.S. at 25 (internal quotation marks omitted). See also

Eu v. San Francisco County Democratic Central Committee, 489

U.S. 214, 222 (1989); FEC v. National Conservative PAC, 470 U.S.

480, 496 (1985).
Gen. 13] 17

5

 Further discussion of this danger may be found in Casino Gaming

Report at 46-47.

In Petition of Soto, 565 A.2d 1088 (N.J. Super. 1989), cert.

denied, 583 A.2d 310 (N.J.) cert. denied, 496 U.S. 937 (1990), the

Appellate Division of the New Jersey Superior Court upheld the

constitutionality of a statute barring certain casino employees from

making political contributions. The New Jersey court noted that, in

Buckley, the Supreme Court had identified the governmental interest

in preventing corruption or its appearance as sufficient to justify

limitations on campaign contributions. As strong as this interest is

generally, it is all the stronger when the industry that is the source of

potential contributions is “‘rife with evil ....’” 565 A.2d at 1094

(quoting trial court). The appellate court also quoted a report about

casino gambling to the effect that “contributions by casino licensees,

both corporate and individual, give the appearance of attempting to

‘buy’ political influence and favoritism and in fact have the very real

potential for causing such favoritism to occur.” 565 A.2d at 1096.5

Further, the New Jersey court held, no remedy short of an

outright prohibition would be sufficient to further this state interest:

“Given the acknowledged vulnerability of the casino industry to

organized crime and the compelling interest in maintaining the

public trust, not only in the casino industry but also the

governmental process which so closely regulates it, ... there is no

viable alternative available to prevent the appearance of, or actual,

corruption of the political process in New Jersey.” 565 A.2d at

1098. Cf. Kentucky Registry of Election v. Louisville Bar Ass’n, 579

S.W.2d 622 (Ky. App. 1979) (while striking down corporate

contribution ban as applied to publication of poll results in judicial

elections, court recognized risks of “corruption of candidates” and

“unwholesome influence over political affairs”); Advisory Opinion

on Constitutionality of 1975 PA 227, 242 N.W.2d 3, 13 (Mich. 1976)

(in upholding corporate contribution ban in candidate elections,

court pointed to “attempts at influence or importunity which might

be exerted upon a successfully elected candidate by a contributing

corporation”). 

Casino gaming is an industry that generates extraordinarily

large sums of money. When legalized at all, the industry is heavily

regulated. For much the same reason, the liquor industry is likewise

heavily regulated. Thus, it is significant that a complete ban on

political contributions by liquor licensees has also been upheld. In
18 [81 Op. Att’y

6

 Nor are contributions bans unheard of in other contexts. For

example, federal law prohibits a federal contractor from making political

contributions. See 2 U.S.C. §441c.

7

 The bill’s line-drawing might be thought to raise an equal

protection problem. That is, the bill effectively bars political contributions

from one segment of the gambling industry ) casino gaming licensees )

while imposing no comparable restriction on persons engaged in other

commercial gambling activities that are authorized by law. These include

parimutuel wagering licensees, see §11-302 of the Business Regulation

Article; commercial bingo licensees, see Article 16, Title 2, Subtitle 3 of

the Anne Arundel County Code; and commercial tip jar licensees, see

Article 27, 255C. However, the General Assembly could reasonably

conclude that the volume of money generated by casino gaming and the

history of criminal activity associated with this industry pose a special risk

of corruption. This distinction would suffice for purposes of equal

protection review.

Schiller Park Colonial Inn, Inc. v. Berz, 349 N.E.2d 61 (Ill. 1976),

the Illinois Supreme Court held that the state interest in avoiding the

corrupting effect of liquor interests on the political process justified

a statute prohibiting political contributions by liquor licensees.

Noting that politicians “may have influence or power which could

be used to affect various actions concerning the liquor industry,” the

Illinois court upheld the legislative attempt to “prevent liquor

licensees from obtaining influence in the area of liquor regulation ...

[by] proscribing the giving of campaign contributions by liquor

licensees to any candidate.” 349 N.E.2d at 66-67.6

Senate Bill 555 avoids unnecessary abridgement of First

Amendment rights. It does not affect licensees’ right to engage in

direct political speech or to make independent expenditures. Nor,

under the construction adopted in this opinion, does the bill reach

gambling licensees beyond the uniquely dangerous category of

casinos.7
Gen. 20] 19

8

 For purposes of assessing the bill’s facial constitutionality, we

need not resolve whether the bill could constitutionally be applied to

contributions in referendum elections, rather than candidate elections.

Compare Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990)

(upholding prohibition of corporate expenditures in candidate election)

with First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978)

(striking down prohibition of corporate expenditures in referendum

election). See also Citizens Against Rent Control v. Berkeley, 454 U.S.

290 (1981) (striking down $250 individual contribution limit in ballot

measure campaign). 

IV

Conclusion

In summary, it is our opinion that Senate Bill 555 is

constitutional on its face.8

J. Joseph Curran, Jr.

Attorney General

Jack Schwartz

Chief Counsel

Opinions and Advice