The hearing at the U.S. Court of Appeals for the Second Circuit in New York featured a wide range of questions from the panel of three judges questioning counsel in Green Party of Connecticut et al v. Garfield.
The case involves two key questions: extremely broad and onerous restrictions on campaign contributions and activity by lobbyists and a public financing scheme which a lower federal court held unconstitutionally discriminated against minor parties and gave an unacceptable windfall to major party candidates.
The judges seemed particularly interested in the sweeping overbreadth of the restrictions on lobbyists and their families from contributing — or even soliciting contributions — to candidates. The first half of the one-and-one half hour argument focused on the lobbying issue. About 75 people attended the hearing.
“There’s been absolutely no evidence that contributions by lobbyists had anything to do with the corruption problem in Connecticut,” said Joel Gora, a longtime ACLU campaign finance lawyer and Brooklyn Law School professor, who consulted with the ACLU on the Connecticut case. “It was really overkill to attack lobbyist for a problem they didn’t cause. This seems to the most sweeping legislation in the country banning lobbying activities, contributions by lobbyists and solicitations for contributions by lobbyists.”
The Court also seemed interested in the timing of the challenge as Connecticut politicians are gearing up for 2010 campaigns and the U.S. Supreme Court is expected to release its long-awaited opinion in Citizens United v. FEC, potentially reshaping the landscape in state races to allow more campaign speech from unions, corporations and other advocacy groups. Corporations, but not unions, are forbidden from funding independent expenditures in Connecticut.
“These are classic unconstitutional conditions for public financing,” said Gora, a member of the Center for Competitive Politics’ board of academic advisors who attended the hearing. “Public financing programs should provide “floors without ceilings,” but this program not only discriminates against third party and independent candidates, it includes unconstitutional ‘trigger’ provisions that punish the speech of non-participating candidates even more, in violation of the Supreme Court’s recent ruling in Davis v. Federal Election Commission.”
