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:
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.