DGA loses challenge, but can still support Malloy’s election

A federal judge’s decision Tuesday leaves intact the state’s regulatory authority over independent campaign expenditures by groups such as the Democratic Governors Association,  but it does not block the DGA from supporting the re-election of Gov. Dannel P. Malloy.

Chief U.S. District Judge Janet C. Hall denied the association’s request for an injunction blocking the enforcement of state campaign finance laws, concluding that its speculation of possible unconstitutional enforcement action gave it no legal standing to sue.

In a 41-page decision, the judge offered sympathy regarding the difficulties of parsing evolving legal restrictions on campaign finance, but she made clear there is no evidence that the DGA is in imminent danger from the State Elections Enforcement Commission.

At issue was the question of potential illegal coordination between the DGA, which is expected to spend millions of dollars to support the first-term Democratic governor’s re-election this fall, and Malloy, who has been raising money for the association in Connecticut and elsewhere.

Citing the relevant section of state campaign law, 9-601c(c), Hall agreed with the SEEC that the DGA essentially was over-sensitive to the legal danger.

“What section 9-601c(c) [and the SEEC’s interpretation of the statute] make clear is that none of the associational activities, like those DGA has planned to engage in, create a presumption of coordination; nor can any of these activities ‘in the absence of other evidence be used to support a finding of coordination.’ ”

In other words, the mere fact that Malloy has raised money for the DGA is not by itself evidence of illegal coordination under state law, which the DGA claimed would be a violation of its constitutional rights of association and speech. Other factors would have to be present, such as a solicitation explicitly tying a DGA donation to Malloy’s campaign.

Hall denied the injunction and dismissed the DGA’s claim that the state law pertaining coordination was unconstitutional, but she left standing a second claim that the state’s definition of what constitutes a campaign expenditure is overly broad and unconstitutional.

“We’re very pleased with the court’s ruling, which allows us to continue to enforce the law that the legislature passed,” Michael Brandi, the general counsel and executive director of the elections enforcement commission, said Wednesday.

The DGA’s communication director, Danny Kanner said late Wednesday afternoon the association will not appeal.

“We are pleased that the court has reaffirmed the DGA’s right to promote Democratic governors and progressive policies in Connecticut, as we do in states across the country,” Kanner said. “Throughout this process, we’ve said that our intent is not to undermine the state’s campaign finance law. With this ruling, we’ve received the clarification we have been seeking, and the law remains intact. For those reasons, we will not be appealing the decision.”

On May 21, Hall ordered theDemocratic Governors Association and the State Elections Enforcement Commission into settlement talks in an attempt to resolve the DGA’s claim that the commission overly restricts independent expenditures. The DGA was a major player in the 2010 campaign, spending $1.7 million to support Malloy and oppose his Republican opponent, Tom Foley.

But 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. “Where is the real and imminent fear?”

Common Cause, the Connecticut Citizen Action Group, the League of Women Voters and the Campaign Legal Center 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.

“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.

Hall noted that a series of higher court decisions have made the issue of how to regulate campaign finance especially volatile:

“The court agrees with both DGA and the defendants in this regard: the case has appeared at times to be a moving (or perhaps evolving) target, which has made an area of law—one that appears to have challenged courts encountering it—all the more difficult.”

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