Judge orders settlement try in DGA campaign case

New Haven – U.S. District Judge Janet C. Hall ordered the Democratic Governors Association and the State Elections Enforcement Commission into settlement talks Wednesday in an attempt to resolve the DGA’s claim that the commission overly restricts independent expenditures.

Prior to the closed-door settlement negotiations, Hall sharply questioned lawyers for both sides in open court, probing the DGA’s legal standing to challenge a law it is yet to be accused of violating and testing whether the state law comports with recent court rulings minimizing restrictions on campaign contributions.

“Where is the credible threat of prosecution?” Hall asked a DGA lawyer, Marc E. Elias, peppering him with questions for 90 minutes. “Where is the real and imminent fear?”

Hall, the chief judge for the district, warned against trying to read too much into her aggressive questioning, although at several points she flatly asserted that Elias was wrong in his interpretation of the state’s campaign finance laws.

“I disagree with you, sir,” Hall told Elias.

The association, which expects to make a multi-million-dollar television advertising buy to support the re-election of Gov. Dannel P. Malloy, filed suit last month challenging the constitutionality of how Connecticut regulates independent campaign expenditures by groups such as the DGA.

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.

Common Cause, the Connecticut Citizen Action Group, the League of Women Voters and the Campaign Legal Center have intervened on behalf of the state. All played a role in supporting the passage of Connecticut’s public financing law.

In a filing, they told Hall that the DGA is attempting to win an absolute defense against any claim of coordination with Malloy, who has held a leadership role in the association and hosted fundraisers. Another fundraising conference is scheduled for next week in Stamford.

“What the DGA is attempting to do is create a case or controversy to enable it to obtain a broad ruling based on scant facts barring the SEEC from conducting a full investigation into whether the DGA coordinated its expenditures with Governor Malloy, should the issue ever arise,” they said.

The lawsuit has been politically awkward for Malloy. Common Cause and CCAG have asked him to publicly urge the DGA to drop the suit. Malloy has refused, saying the group is within its rights.

The Connecticut Republican Party also has sought to intervene. Hall delayed ruling Wednesday on the GOP’s involvement, allowing the DGA until Tuesday to file a brief in response.

Meanwhile, U.S. Magistrate Judge Holly B. Fitzsimmons was to conduct settlement talks Wednesday afternoon in Bridgeport. Elias and Assistant Attorney General Maura Murphy-Osborne, who is defending the elections enforcement commission, declined to speculate on the potential for a settlement.

Hall said her first task — if no settlement is reached — will be determine if the DGA has the legal standing to challenge the constitutionality of Connecticut law or seek an injunction blocking the elections enforcement commission from enforcing it.

“I haven’t gotten you through the courthouse door yet,” Hall told Elias.

Hall, a litigator at Robinson & Cole who was appointed to the bench by President Clinton in 1997, said Elias most likely would have standing if state law explicitly barred a candidate such as Malloy from participating in the DGA, which intended to later make independent expenditures.

“I don’t see that type of proscription here,” Hall said.

But Hall later asked Murphy-Osborne if Malloy’s membership in DGA might leave him and the association open to a charge of illegal coordination, as feared by Elias.

“I don’t read it that way,” Murphy-Osborne said. “The mere fact of membership doesn’t meet the statutory requirement of coordination.”

Elias smiled and told Hall that the state is suggesting that the DGA is premature in its challenge — or too late, since it did not formally object to advisory ruling on independent expenditures last fall.

Malloy, a first-term Democrat, was re-nominated without opposition last weekend. The state GOP endorsed Tom Foley, his 2010 opponent, but also qualified two other Republicans for a primary, Danbury Mayor Mark Boughton and Senate Minority Leader John P. McKinney of Fairfield.

“We are here now because the campaign season is at the beginning,” Elias said, noting that it is clear the Connecticut governor’s race, pegged as a dead heat in one recent poll, will be competitive. “Election cases arise around the time of elections. We are at the very front end.”

 

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