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Green Party of Connecticut v. Jeffrey Garfield

On July 13, 2010 the Second Circuit issued two important decisions, upholding the majority of Connecticut’s recently-enacted campaign finance reform system – including its groundbreaking public financing system – against a sweeping constitutional challenge.

Published: July 13, 2010

July 13, 2010 The Second Circuit issued two import­ant decisions, uphold­ing the major­ity of Connecti­c­ut’s recently-enacted campaign finance reform system – includ­ing its ground­break­ing public finan­cing system – against a sweep­ing consti­tu­tional chal­lenge. Click here to read the decision in the “pay-to-play” portion of the case, click here to read the decision in the CEP portion of the case.

The Bren­nan Center, work­ing with its pro bono part­ner Hogan Lovells, argued the case in the Second Circuit on behalf of Inter­venor Defend­ants. Most import­antly, in Green Party of Connecti­cut v. Garfield, the Second Circuit strongly reaf­firmed the decades-old hold­ing of the Supreme Court’s land­mark decision in Buckley v. Valeo – that public finan­cing systems enhance First Amend­ment values rather than burden­ing them. Despite uphold­ing the major portion of the Citizens Elec­tion Program, the Second Circuit struck down one aspect, 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, and one which the Supreme Court may choose to consider in its upcom­ing term.

The Court also upheld Connecti­c­ut’s strict “pay-to-play” ban for state contract­ors, barring state contract­ors from contrib­ut­ing to the 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.

This decision broadly upheld the cosnti­tu­tion­al­ity of public finan­cing systems.

Octo­ber 2006: The Bren­nan Center filed a motion on behalf of Connecti­cut Common Cause, Connecti­cut Citizen Action Group, and three poten­tial polit­ical candid­ates to inter­vene in Green Party of Connecti­cut, et al. v. Jeffrey Garfield, et al. to help defend the consti­tu­tion­al­ity of land­mark campaign finance laws chal­lenged in the case. The Bren­nan Center’s Motion to Inter­vene was gran­ted. This case is pending in the United States District Court, District of Connecti­cut, and has been separ­ated into two differ­ent tracks.

Septem­ber 2, 2009: The District Court held the CEP uncon­sti­tu­tional and enjoined its oper­a­tion. The Bren­nan Center, on behalf of its clients, and the State of Connecti­cut appealed promptly there­after. The case is now before the Second Circuit Court of Appeals on an exped­ited sched­ule with oral argu­ment sched­uled for the week of Janu­ary 13, 2010.

Novem­ber 6, 2009: In addi­tion to assist­ing the State of Connecti­cut with the primary appel­lant brief, the Bren­nan Center submit­ted a separ­ate supple­mental brief on behalf of the Inter­ven­ors-Appel­lants. Down­load 11/06/09 brief [pdf].

In their brief, Inter­ven­ors-Appel­lants advance two main argu­ments. First, that the District Court’s rationales for inval­id­at­ing the CEP are profoundly at odds with settled preced­ent uphold­ing the consti­tu­tion­al­ity of public finan­cing systems. If affirmed, such reas­on­ing would impose inap­pro­pri­ate and likely insu­per­able restric­tions upon the design of public finan­cing initi­at­ives. Second, that the District Court abused its discre­tion by order­ing a broad injunc­tion of the CEP in its entirety without any consid­er­a­tion of the effic­acy of a narrower remedy.

Decem­ber 30, 2009: The Bren­nan Center filed a reply brief in advance of the Janu­ary 13, 2010 oral argu­ment. Down­load Reply Brief [pdf].

Public Finan­cing of Legis­lat­ive Campaigns

One track of the case chal­lenges provi­sions of the Citizens’ Elec­tion Program – a public finan­cing law passed by the Connecti­cut General Assembly in Decem­ber 2005.  The Citizens’ Elec­tion Program provides full public finan­cing to qual­i­fied candid­ates for legis­lat­ive and statewide offices in Connecti­cut.  In order to parti­cip­ate, a candid­ate must abide by certain contri­bu­tion and expendit­ure limits in return for a public grant.

In their Complaint, the Green Party of Connecti­cut chal­lenged the qual­i­fy­ing criteria and fund­ing distri­bu­tion formu­las for third party candid­ates to parti­cip­ate in the public finan­cing program and provi­sions that permit parti­cip­at­ing candid­ates to receive addi­tional public funds when faced with high oppos­i­tion spend­ing.

In Febru­ary 2007, the Bren­nan Center, along with the State of Connecti­cut, filed a Motion to Dismiss Plaintiffs’ chal­lenges to the public finan­cing program.  On June 6, 2007, the Bren­nan Center’s Suzanne Novak parti­cip­ated in oral argu­ment before the court.  (Read the tran­script here.)

On March 20, 2008, Judge Stefan Under­hill dismissed two of the Plaintiffs’ claims, ruling that the trig­ger­ing of extra public funds to parti­cip­at­ing candid­ates who face high private spend­ing does not burden the exer­cise of any First Amend­ment rights.  However, the Plaintiffs’ claims about the public finan­cing system’s treat­ment of minor party and peti­tion­ing candid­ates survived the Motion to Dismiss.  An evid­en­tiary record was then developed by both parties. 

On July 10, 2008, Plaintiffs submit­ted a Motion for Summary Judg­ment, which included a Motion for Recon­sid­er­a­tion of the Order to Dismiss in light of the recent Supreme Court decision in Davis v. Federal Elec­tion Commis­sion. The Bren­nan Center, on behalf of Defend­ants and Inter­venor-Defend­ants, filed a Motion for Partial Summary Judg­ment on July 11.

Both Plaintiffs and Defend­ants filed briefs in oppos­i­tion to Summary Judg­ment on Septem­ber 5, 2008. Defend­ants and Inter­venor-Defend­ants also submit­ted a Motion in Oppos­i­tion to Recon­sid­er­a­tion arguing that Davis, a case involving the applic­a­tion of assy­met­rical contri­bu­tion limits in a private finan­cing system, is not controlling in the very differ­ent land­scape of volun­tary public campaign finan­cing.

Reply briefs in further support of their respect­ive motions for summary judg­ment were filed by Plaintiffs and Defend­ants on Octo­ber 3, 2008. On Octo­ber 10, the parties convened for oral argu­ment, after which Judge Under­hill denied both motions for summary judg­ment and sched­uled two bench trials – a hear­ing on the facial aspects of the chal­lenge for Decem­ber 9 and 10, 2008 and a hear­ing on the as-applied aspects of the chal­lenge for March 11 and 12, 2009. Prior to the Decem­ber trial, Defend­ants filed filed a motion for summary judg­ment and Plaintiffs filed a Pre-Trial Memor­andum.  On Decem­ber 3, Defend­ants filed an oppos­i­tion to Plaintiffs’ Pre-Trial Memor­andum. In prepar­a­tion for the March, 2009, bench trial, Defend­ants filed a set of proposed find­ings of fact as to Plaintiffs’ as-applied chal­lenge. For tran­scripts of the Decem­ber, 2008 and March, 2009 bench trials, click on the appro­pri­ate date below:

Decem­ber 9, 2008 | Decem­ber 10, 2008 | March 11, 2009 | March 12, 2009

Ban on Contri­bu­tions from Lobby­ists and State Contract­ors

The second track of this case centers on the 2005 law’s restric­tions on contri­bu­tions from special interest groups. Lobby­ists, state contract­ors and prospect­ive state contract­ors are prohib­ited from making contri­bu­tions to certain candid­ate commit­tees for legis­lat­ive and statewide offices, candid­ate-affil­i­ated polit­ical action commit­tees (PACS) and party commit­tees.

The Asso­ci­ation of Connecti­cut Lobby­ists, along with the Green Party and the other Plaintiffs from the public fund­ing part of the case, allege in their complaints that that the contri­bu­tion and soli­cit­a­tion restric­tions on prin­cipals of state contract­ors, prospect­ive prin­cipals of state contract­ors, commu­nic­ator lobby­ists and their famil­ies are uncon­sti­tu­tional.

On July 13, 2007, Plaintiffs filed a Motion for Summary Judg­ment, and the Bren­nan Center, along with the State of Connecti­cut, filed a cross Motion for Summary Judg­ment. On August 24, 2007 the Plaintiffs filed two responses: one by the ACLU and one by the Asso­ci­ation of Connecti­cut Lobby­ists.  The Bren­nan Center and the State filed a single response. On Septem­ber 26, 2007, the Plaintiffs filed a reply, as did the Bren­nan Center and the State.

Hogan & Hartson part­ner Ira Fein­berg presen­ted oral argu­ment on behalf of Defend­ants and Inter­venor-Defend­ants at a hear­ing on March 4, 2008. Read the tran­script here.

On Decem­ber 19, 2008, Judge Stefan Under­hill issued a ruling uphold­ing Defend­ants’ and Inter­venor-Defend­ants’ Motion for Summary Judge­ment and deny­ing Plaintiffs’ motions. In his opin­ion, Judge Under­hill concluded that in “light of Connecti­c­ut’s recent history of corrup­tion scan­dals involving high-rank­ing state politi­cians,” the Connecti­cut legis­lature “had a consti­tu­tional, suffi­ciently import­ant interest in combat­ing actual and perceived corrup­tion by elim­in­at­ing contri­bu­tions from indi­vidu­als with the means and motive to exer­cise undue influ­ence over elec­ted offi­cials.” Read the entire opin­ion here.