The State Elections Enforcement Commission is expected today to grant Republican gubernatorial candidate Michael C. Fedele $312,500 in supplemental public financing to offset spending by GOP front runner Tom Foley.
With the refusal Tuesday by the state Supreme Court to intervene, the commission appears obligated to approve the funds contested by Foley. UPDATE: Funds approved
The U.S. Court of Appeals for the 2nd Circuit ruled a week ago that public financing triggered by a privately financed opponent’s spending is unconstitutional, but the court has yet to direct any lower court to enforce the order.
Foley, who has opted out of the voluntary public-financing program, has been frantically trying to stop Fedele from collecting the money. He ran out of legal venues Tuesday morning at the state Supreme Court.
Chief Justice Chase T. Rogers issued a terse announcement from the bench after a brief recess that the court had affirmed the decision of Superior Court Judge Julia L. Aurigemma, who refused to issue an injunction last week blocking Fedele from the funds.
“Decision to follow,” she said.
Lawyers for Foley, Fedele and the state made oral arguments, beginning at 11 a.m., then the panel of five justices retired briefly before returning with its decision.
Justin Clark, Foley’s campaign manager, said the campaign would take no further legal steps to attempt the block the commission from acting today at 9 a.m. on Fedele’s latest grant application.
“For the fourth time in a week, Tom Foley has seen his frivolous lawsuits fail in court,” said Chris Cooper, the communication director for Fedele.
Foley has been turned down three times in state courts and once in federal court on requests to block or limit Fedele’s access to public financing.
The flurry of court actions began a week ago.
On July 13, a federal appeals court ruled that the state cannot give supplemental grants triggered by an opponent’s spending, while Aurigemma separately denied a motion by Foley and Oz Griebel, another GOP candidate, to bar Fedele from receiving $2.18 million in public financing.
Fedele’s original grant included $937,500 in trigger money that the federal court says is unconstitutional, but there was no immediate legal prohibition on him spending the money, which was awarded to him a week earlier by the State Elections Enforcement Commission.
Foley desperately tried to rectify that in the hours after the court rulings, asking the Connecticut Supreme Court and the U.S. District Court to enjoin Fedele’s campaign from spending the public funds. His campaign issued a statement warning vendors, such as TV stations, from doing business with Fedele.
On Tuesday, the Foley campaign suggested the Fedele refrain from accepting any additional funds and to return his earlier supplemental grant.
“We call, once again, on Lt. Gov. Fedele to do the right thing and return the unconstitutional money to the taxpayers of Connecticut,” Clark said.
Rogers did not say if Tuesday’s decision was unanimous. Joining Rogers on the panel were Justice Joette Katz, Justice Richard Palmer, Senior Justice Christine Vertefeuille and F. Herbert Gruendel, an Appellate Court judge.
Vertefeuille, who is semi-retired, and Gruendel were added to the panel, because other justices disqualified themselves for potential conflicts.
Gruendel was the one dissenting jurist a week ago when the court refused to issue a temporary injunction blocking Fedele from spending his previous $2.18 million in public grants until a hearing.
Democratic gubernatorial candidate Dan Malloy qualified for public financing without challenge or controversy in June, raising $250,000 in qualifying contributions of no more than $100.
Wesley Horton, a lawyers for Foley, argued Tuesday the commission erred when it allowed Fedele and his running mate, Mark D. Boughton, to join their campaign finances. Fedele had raised $228,232 in contributions of $100 or less, and didn’t clear the qualifying threshold of $250,000 until Boughton’s contributions were included.
Horton said the commission misread the law in allowing them to pool their contributions, and the decision effectively allowed Fedele to collect $200 from donors who gave to both Fedele and Boughton.
“That’s double-dipping,” Horton said.
If the commissioner erred in allowing Fedele and Bought to pool their funds, Gruendel asked Horton, could the court could order Fedele to return the $2.18 million already received, in addition to blocking the additional supplemental funds?
Horton replied that if the court agreed with his arguments, it could seek a return of the funds.
It was unclear Tuesday if the court agreed with any of Horton’s arguments. It might have agreed with him on the substance and still refused to overturn Aurigemma and issue an injunction, reasoning it would be unfair to intervene so close to the Aug. 10 primary.
Fedele’s lawyer, William Gallagher, told the justices that Fedele had relied in good faith on the State Elections Enforcement Commission for guidance in joining his campaign with Boughton’s.
If the commissioner erred, Fedele should not be penalized, Gallagher said. Since the deadline for qualifying passed July 16, Fedele would have no ability to raise additional qualifying funds if the court disallowed the pooling of his funds with Boughton’s, the lawyer argued.
Under the public financing program enacted in 2005, a qualifying gubernatorial candidate is guaranteed a base grant of $1.25 million to wage a primary campaign. The program also allows a supplemental grant to match an opponent’s spending, up to a maximum of another $1.25 million.
Based on Foley’s spending and current program rules, Fedele appears eligible for an additional $312,500, which would bring his supplemental grant to the maximum $1.25 million, and his total funding for the primary to $2.5 million.
Beth Rotman, the director of the Citizens’ Election Program, said the commission will seek a full briefing by the attorney general’s office before acting today on Fedele’s request for his final supplemental grant.
Malloy also has received the maximum primary grant of $2.5 million, triggered by the spending of is Democratic primary opponent, Ned Lamont.