In an important campaign finance decision, the Second Circuit Court of Appeals has affirmed a lower court ruling that Connecticut’s system of taxpayer financed campaigns violates the First Amendment.
“This case is not about Connecticut’s ability to combat corruption,” said Steve Hoersting, the vice president of the Center for Competitive Politics, which filed an amicus brief in the case. “This program put the heavy thumb of government on the scale to force candidates into a catch-22: accept ‘clean elections’ subsidies and the state will help you win your election—don’t and the state will aid your opponent dollar-for-dollar.”
In Sept. 2009, U.S. District Judge Stefan Underhill ruled that a provision of Connecticut’s tax financing system providing participating candidates with windfall subsidies based on the spending of non-participating candidates and independent groups violated the Constitution. The District Court will now consider whether this provision can be severed from the “Citizens Election Program” (CEP) or if the entire program will fall.
Underhill allowed the program to continue pending the Second Circuit’s decision, but the appellate court has now asked the District Court to “act expeditiously” in reconsidering an injunction prohibiting distribution of “rescue funds.” Republican gubernatorial candidate Tom Foley, who is self-funding his campaign, has filed a lawsuit focusing on the trigger provision and other issues to prevent the CEP from distributing about $2 million in public funds to the campaign of primary opponent Lt. Gov. Michael Fedele.
“In light of this strong ruling upholding the First Amendment rights of candidates and independent political groups, the District Court should end this failed program once-and-for-all instead of just excising the ‘trigger provision,'” said CCP Chairman Bradley A. Smith, a former Federal Election Commission Chairman.
In May, the Ninth Circuit Court of Appeals ruled that a similar program in Arizona was constitutional in McComish v. Bennett. This circuit split increases the likelihood the U.S. Supreme Court will hear the case, which has been stayed pending a petition for review. The Second Circuit panel bluntly declared, “we are not persuaded by the Ninth Circuit’s opinion.”
“[W]e agree with the District Court that the CEP’s trigger provisions violate the First Amendment because they operate in a manner similar to the law that the Supreme Court struck down in Davis v. Federal Election Commission,” according to the Second Circuit’s ruling.
The Second Circuit also ruled, per Buckley v. Valeo, that Connecticut’s funding scheme did not unconstitutionally discriminate against minor parties.
“While the overall ruling recognizes the flaws with the CEP, the discriminatory provisions affecting minor parties remain,” said CCP Vice President of Policy Allison Hayward. “It’s rigged so only Democratic and Republican candidates can access the program’s funds, freezing out third parties. That’s not a proper way to ‘reform’ the political process or curb corruption.”
In a second opinion, the Second Circuit affirmed the District Court ruling that government contractors could be prohibited from making campaign contributions, but the Court struck down similar restrictions on their family members and state lobbyists-another First Amendment victory.
“The Second Circuit wasn’t willing to trim back the so-called pay to-play restrictions to address real corruption, but they nixed the most arbitrary and irrational free speech restrictions,” Hayward said. “The blanket ban is not limited to no bid contractors. People who’ve obtained contracts through a transparent, competitive process should not be forced to give up their First Amendment rights.”
The Center for Competitive Politics filed an amicus brief in this case, Green Party of Connecticut v. Garfield. The first part of today’s decision is here. The second part is here. The Sept. 2009 District Court decision is here.
The Center for Competitive Politics is a nonpartisan, nonprofit group dedicated to protecting First Amendment political rights. CCP seeks to promote the political marketplace of ideas through research, litigation and advocacy.
