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Second Circuit Reaffirms Constitutionality of Public Financing

For Immediate Release
Contact: Jeanine Plant-Chirlin, 212-998-6289

New York – Today, the Second Circuit upheld a major portion of Connecticut’s 2005 campaign finance reform system—including its groundbreaking public financing system—against a sweeping constitutional challenge.

The Brennan Center played a central role in the case. In partnership with pro bono counsel Hogan Lovells, the team argued in the Second Circuit on behalf of Common Cause of Connecticut, Connecticut Citizen Action Group, and two former candidates for state office, Audrey Blondin and Tom Sevigny.

Significantly, the Second Circuit strongly reaffirmed the Supreme Court’s landmark decision in Buckley v. Valeo—that public financing systems enhance—rather than burden— First Amendment values.

The Court first found that Connecticut’s Citizens Election Program furthers several important governmental goals, including “eliminat[ing] improper influence on elected officials.” Then, it rejected the plaintiffs’ claim that the program unfairly burdens minor party candidates, citing the complete lack of evidence supporting this position. On the contrary, after reviewing 2008 election results, the Court noted that—in fact—well-supported minor party candidates have greatly benefitted from public grants.

While upholding the major portion of the Citizens Election Program, the Second Circuit struck down the so-called “trigger provisions” that provide additional public funds in unusually expensive races when nonparticipating candidates or third parties spend over a certain threshold. This is an unsettled area of the law, however, that has caused disagreement among the appellate courts that have ruled on this issue. The Supreme Court may consider this legal question in its upcoming term.

“In the aftermath of the Supreme Court’s radical ruling in Citizens United—with corporations free to spend unlimited corporate expenditures in elections—this decision sends a strong message to other states about the constitutionality, and the importance, of public financing systems. Public funding programs are the best way to ensure that candidates remain accountable to the voters, not beholden to special interests,” says Monica Youn, Brennan Center counsel.

“But we found that the Court’s analysis on trigger provisions was, quite simply, wrong. Trigger funds do not prevent anyone from exercising their political rights; instead, they leave the rights of non-participants wholly unaffected.”

In addition, the Court upheld Connecticut’s strict “pay-to-play” ban for state contractors, barring state contractors from contributing to campaigns of state candidates, while striking down a similar contribution ban for state lobbyists. The state also struck down a provision of the “pay-to-play” law that would prohibit contractors and lobbyists from soliciting campaign contributions from third parties.

“I welcome their decision to uphold the ban on contributions by state contractors,” said Ira Feinberg, a partner at Hogan Lovells who led the firm’s pro bono efforts in this litigation and who argued the case in the Second Circuit.

For more information on the case and the ruling or to speak with Monica Youn, please contact Jeanine Plant-Chirlin at 212-998-6289 or at jeanine.plant-chirlin@nyu.edu.