Supreme Court campaign finance case has implications for Connecticut

WASHINGTON–Connecticut’s public campaign financing program will be on trial–indirectly, anyway–before the U.S. Supreme Court today, when the justices will hear oral arguments in an Arizona case to determine whether supplemental grants, triggered by an opponent’s spending are constitutional.

Such payments were doled out to both Democrat Dannel Malloy and Republican Michael C. Fedele during Connecticut’s heated gubernatorial primary contests last summer, as they scrambled to keep up with their wealthy self-funding opponents. Just weeks before the state’s primary election, a federal appeals court deemed those supplemental grants unconstitutional, prompting a special legislative session in Hartford to deal with the fall-out.

But two months earlier, a federal court in California ruled that a similar Arizona system, which also provided candidates participating in the state’s public financing system extra funds based on their opponents’ spending, was constitutional.

Now, the Supreme Court will decide the issue, which touches on a wide range of thorny legal questions, from campaign finance rules to freedom of speech.

Opponents of triggered extra payments say that system “punishes” candidates who don’t participate in public financing and hinders their free speech. Supporters say such a system actually encourages more robust debate in elections and keep campaigns free of corruption by limiting the influence of special interest campaign contributions.

For now-Gov. Malloy, the funding from Connecticut’s Citizens’ Election Program was certainly critical. He got $2.5 million for the primary and $6 million for the general election in CEP funds.

In a sign of the significance of Monday’s court case to Connecticut, three state parties filed briefs in the case–Attorney General George Jepsen; unsuccessful Democratic gubernatorial candidate Ned Lamont, who spent $9 million of his own money in his 2010 race; and the Yankee Institute for Public Policy, a conservative think tank based in Hartford.

If Arizona’s matching funds law is upheld, “it is likely that such a decision will pave the way for the Connecticut legislature to reenact similar triggered matching funds provisions in Connecticut’s campaign finance law,” the Yankee Institute wrote in its “friend of the court” brief filed on behalf of an Arizona candidate challenging the law.

Jepsen said a ruling in a ruling in favor of the Arizona system “would restore the flexibility of Connecticut and other states in designing and implementing public campaign finance systems.”

After Connecticut’s matching grants provision was thrown out by the U.S. Court of Appeals for the 2nd Circuit, state legislators convened a special session and passed a law doubling the general-election grants, from $3 million to $6 million, available to gubernatorial candidates participating in the state’s public financing system.

The move was designed to make sure Malloy and Fedele would have enough money to stay competitive, even in the absence of a trigger provision bumping up their payments in the face of a big-spending opponent.

The Yankee Institute’s executive director, Fergus Cullen, called the 2010 Connecticut governor’s contest “extra-constitutional” because of the special payments to Malloy and Fedele. “When the state is leveling the playing field, they are in fact tipping it one way or another in a way that hurts some candidates and helps others. That’s not the proper role of government.”

John McComish, who ran for the Arizona state House in 2008, is the main petitioner in Monday’s Supreme Court case. In his Supreme Court brief filed for today’s arguments, he says that Arizona’s matching funds system “throws a yoke around the necks of traditional candidates and their supporters, requiring them to advance the campaigns of their political opponents alongside their own.”

The system “forces traditional candidates to help disseminate hostile speech by their political opponents,” McComish argues, because as he spent more on his own campaign, he triggered public financing payments to his opponents. “The only way traditional candidates can avoid the punishment of matching funds is either to avoid competing against participating candidates or to run as a participating candidate.”

His brief includes an anecdote in which Janet Napolitano, then a Democratic gubernatorial candidate and now U.S. Secretary of Homeland Security, seemed to gloat about how her GOP opponent Matt Salmon’s fundraising prowess was helping fill her campaign coffers, too.

After they faced off in a debate, Napolitano reportedly said, “I pulled Matt aside and thanked him, because under the Clean Elections match, his event raised $750,000 for my campaign. I am quite certain that I am the only Democratic Governor in the country for whom George Bush has held a fundraiser.”

Connecticut’s system was similarly punitive and had a “chilling” effect on free speech, the Yankee Institute’s Cullen argues in his group’s Supreme Court brief.

“Having gone through the 2008 and 2010 election cycles with a program similar to Arizona’s–including triggered matching funds provisions–the constitutional rubber met reality’s road in Connecticut,” the Institute’s brief says.

Cullen argues that the outcomes of both the Democratic and Republican gubernatorial contests were “significantly influenced–and perhaps determined–by the triggered matching funds provisions.”

Fedele’s primary opponent, Tom Foley, who spent nearly $11 million of his own money to fuel his bid, was “mindful that any money he spent over $1.25 million in the primary would trigger public funds supporting hostile speech for his participating opponent,” the Institute says. “Accordingly, he made different decisions than he would have otherwise made in terms of whether, when and how much he would spend.” This, in turn, hindered his First Amendment rights.

Jepsen and Lamont both filed briefs in support of Connecticut’s now-moribund matching-funds system.

Lamont joined six other self-funding candidates in arguing that a trigger provision spurring extra payments to candidates participating in public financing, when their opponents hit certain spending thresholds, is “vital” to a strong democratic election system.

The self-funders’ brief says that none of them were “ever deterred in any measure” from spending their own campaign dollars by concerns that it would increase the resources of their opponents.

They argue that the fund-matching provision strikes a careful balance between the “reality that the funds available for public financing are not limitless and, on the other, the importance of minimizing the possibility that the speech of a publicly financed candidate will effectively be drowned out by that of an opponent with far greater resources.”

Without such a provision, they warn, many candidates will be deterred from participating in the public financing system, “thereby thwarting its purpose of lessening corruption and the appearance of corruption.” Providing for supplemental funds protects that goal “in a manner that promotes the First Amendment values of vigorous debate, without infringing the First Amendment rights of any individual or of the public running for office.”

Similar, Jepsen and several other state attorneys general scoff at the plaintiffs’ contention that supplemental payments somehow infringe on the Free Speech rights of opposing candidates.

“There’s nothing in the Arizona law that serves to suppress any viewpoint,” they write. “On the contrary, public financing will generally make more funds available for speech and thus create more speech.”

Some legal observers say the Supreme Court’s other recent campaign finance rulings, including the controversial Citizens’ United case that allowed unfettered corporate spending in federal elections, do not bode well for the arguments of Jepsen, Lamont and others proponents. But the Yankee Institute’s Cullen said he didn’t want to venture a guess as to how the nine justices would rule.

However it goes, Cullen said, he’ll be camped out in front of the court this morning to make sure he has a seat in the chamber when the arguments begin.