The Democratic Governors Association, which expects to heavily advertise this fall to support the re-election of Gov. Dannel P. Malloy, filed a federal lawsuit Wednesday challenging the constitutionality of how Connecticut regulates independent campaign expenditures.
The association seeks an injunction barring the State Elections Enforcement Commission, the chief state's attorney's office and the attorney general from enforcing what it says are overly broad rules that could expose the group to an accusation of illegal coordination with the Malloy campaign.
In part, the lawsuit is a pre-emptive move against any claim that Malloy's fundraising for the group should be construed as illegal coordination under state law, which could either keep the association, the DGA, on the sidelines in Connecticut or expose it to prosecution.
"DGA has been forced into a constitutionally untenable choice: it can avoid the protected speech in which it seeks to engage; it can forego the support and participation of Connecticut's citizens in raising the funds that it needs to maintain a robust national program; or it can entertain the very real threats of investigation, fines and criminal prosecution," the lawsuit states.
The challenge immediately generated blow back from the political right and left at Malloy, who is closely associated with the DGA as both a rainmaker and a once and future beneficiary of the group's independent expenditures. The DGA spent $1.78 million in support of Malloy in 2010, while its GOP counterpart, the Republican Governors Association, spent $1.6 million to defeat him.
"I think the governor should ask them to rescind this lawsuit," said Tom Swan, the executive director of the Connecticut Citizen Action Group, and a sometime Democratic campaign operative.
"He should immediately disavow connections with the DGA and demand they drop their lawsuit," said Senate Minority Leader John P. McKinney, one of the six candidates for the GOP gubernatorial nomination.
The lawsuit carries a tactical risk in that it may free Republican groups to closely coordinate with the GOP nominee in opposition to Malloy. The Republican Governors Association is far better financed than the DGA, raising $2 for every $1 that goes to the Democratic group.
In the three-month period ending March 31, the RGA raised $22.4 million to the Democrats’ $11.7 million.
Tom Foley, the 2010 Republican nominee and one of the candidates seeking the nomination this year, already has close relationships with at least two independent-expenditure groups, including one that is run by his campaign treasurer.
"Connecticut's campaign finance laws and declaratory rulings by the State Elections Enforcement Commission (SEEC), conflict with Supreme Court First Amendment precedent and place a cloud of uncertainty over what DGA may say or do without fear of prosecution," the suit states.
Malloy helped the DGA raise $1.4 million from Connecticut donors last year, but the money goes into a general national account and is not earmarked for spending on his re-election. The DGA says that does not constitute coordination, but it fears that the elections enforcement commission might.
"In SEEC's opinion, a 'close relationship' between a candidate and a spender and their sharing of 'common values and goals' is sufficient, without more, to justify state investigation of protected political speech," the suit says.
Connecticut law also asserts a rebuttable presumption of coordination under certain circumstances, including shared staff or consultants.
"To ensure that DGA's expenditures are independent, DGA has established a firewall policy designed and implemented to prohibit the flow of information between (1) employees, consultants and other individuals providing services to DGA related to the expenditure; and (2) the candidate or agents of the candidate benefiting from the expenditure," the suit says.
Unstated is that the DGA and Malloy, at times, have each used the Global Strategy Group. Global has conducted polling for the DGA, and Roy Occhiogrosso, an adviser to Malloy, is a Global employee.
Michael J. Brandi, the executive director and general counsel to the State Elections Enforcement Commission, said the commission and the attorney general's office were evaluating the lawsuit.
"We're not commenting on anything yet," Brandi said.
Andrew Doba, a spokesman for Malloy, said that the DGA gave Malloy's general counsel a "courtesy heads-up" immediately before the suit was filed. Malloy neither endorsed, nor criticized the the DGA's action.
"The governor's perspective on this has always been very clear. As soon as the Citizens United decision came down he said he thought it was the wrong decision because it would open up the floodgates to outside money coming into campaigns," Doba said. "He also has been very clear that he believes the playing field should be level. While this is not the landscape he would've chosen, he does believe that if organizations believe they need to take certain actions in order to ensure that level playing field they have every right to do so."
The suit filed in U.S. District Court in New Haven names Brandi, the members of the commission, Attorney General George Jepsen and Chief State's Attorney Kevin Kane as defendants in their official capacities. It was assigned to Chief Judge Janet C. Hall, who was appointed to the court in 1997 by President Clinton.
Jepsen declined comment.
Perkins Coie, an international law firm with a major campaign-finance practice, is representing the DGA.
Connecticut’s race for governor is one of 34 nationally, but it is expected to attract major outside spending by the DGA, RGA and other groups if it remains competitive. In the most recent public poll, Malloy and Foley were tied at 42 percent.
Outside spending could be pivotal in Connecticut, where most candidates for state office participate in a voluntary system of public financing that restricts direct spending by their campaigns.
Malloy has committed to public financing, which will limit him to a general-election grant of $6 million and $250,000 in private donations, none greater than $100. But he has been raising money for the DGA and the state Democratic Party.
Individuals and corporations can make unlimited contributions to the Democratic and Republican governors' groups, and the two organizations can make unlimited expenditures in any race.