What began as a dispute over an obscure mailing late in the 2014 gubernatorial campaign has escalated into a legal battle with potentially dire consequences for the State Elections Enforcement Commission or the legacy of Gov. Dannel P. Malloy.
Superior Court Judge Antonio C. Robaina will conduct an evidentiary hearing that could determine if the commission can investigate whether the Connecticut Democratic Party illegally supported Malloy’s re-election with contributions from state contractors.
(Update: The hearing scheduled for Tuesday morning has been postponed for at least two days.)
The issue before Robaina, a Democrat appointed to the bench by Republican Gov. John G. Rowland in 1998, is whether to compel the Democratic State Central Committee to comply with the commission’s investigative subpoena demanding a broad array of emails, campaign solicitations and financial documents.
David S. Golub, representing the Democrats, says the party rejected the subpoena as an impermissibly broad fishing expedition. Besides, he says, federal law preempts the commission from regulating get-out-the-vote efforts in federal election years.
If Golub prevails, Malloy is likely to be blamed for a major weakening of campaign finance reforms and the authority of elections regulators.
The office of Attorney General George Jepsen, a Democrat who once led the party as chairman, told the judge in papers filed Monday that the party’s position that federal law preempts the state investigation is “stunning, without merit, and premature.”
Every regular election for state office coincides with congressional elections. So, if the party led by Malloy prevails, then one of the bipartisan reforms passed 10 years ago in response to the bid-rigging scandal that drove Rowland from office – a ban on state contractor contributions to state campaigns – essentially will be unenforceable.
“The far-reaching implications of the DSCC’s argument cannot be overstated,” Maura Murphy Osborne, the assistant attorney general representing the elections commission, wrote in a memorandum to the judge.
The same year that the General Assembly banned contractor contributions, it created the voluntary Citizens’ Election Program, which further limited the influence of campaign contributions by publicly financing campaigns.
Participating candidates qualified by raising threshold amounts, such as $250,000 for a gubernatorial campaign. No individual can contribute more than $100.
In 2014, Malloy and his Republican opponent, Tom Foley, each were granted $6.5 million in public financing. In total, $33 million in public financing was provided last year to candidates for state legislative and constitutional statewide offices.
“The continued viability and credibility of this important and costly state program hinges on the public’s confidence that it actually advances its intended governmental purpose of reducing the influence of private contributions in the campaigns and governing of officials who participate in the CEP, in particular the influence of prohibited contributors the State has lawfully restricted from funding candidates for State office,” Osborne wrote.
Under current law, the political parties can raise money for state and federal elections under two sets of rules: state law bars state contractor contributions, while federal law does not. Contractors barred from state races can give up to $10,000 annually to the parties’ federal campaign accounts.
But the wall between the state and federal accounts is porous. Federal law requires that funds used to turn out voters in federal election years, even if state candidates are beneficiaries, must come out of the federal campaign account.
Much of the political parties’ overhead in even-numbered years, when most state and federal offices are up for election, has been covered by the federal campaign accounts, which can accept up to $10,000 from anyone, including state contractors.
In a complaint to the elections commission, the GOP accused Malloy of soliciting state contractors for contributions to the federal account that supported his re-election. They also said a mailer covered by the federal account featured no other candidate but Malloy.
The Democrats sought an advisory opinion about the legality of using federal funds for a mailer in support of Malloy’s re-election. It withdrew the request, then went ahead with the mailer featuring Malloy, but also provided general information such as polling hours.
Golub said in his memorandum to the court that the party was required by federal law to use the federal account to pay for the mailer since it was an element of a get-out-the-vote effort, “and any provisions of state law to the contrary are clearly preempted.”
Similarly, he said, Malloy’s “alleged solicitations of contributions from state contractors for the DSCC’s federal account are lawful under state law.” Golub said the general counsel of the commission has admitted as much in a deposition.