Green Party of Connecticut wins lawsuit against Clean Elections Law
by Mike DeRosa, co-chair of the Green Party of Connecticut
Greens applaud Federal Judge Underhill’s decision because it supports the political opportunity of minor parties to enter the political stadium and supports the idea of a level playing field.
In a thought out and farsighted decision, Second District Federal Court Justice Underhill, recently overturned Connecticut’s campaign finance law and declared it unconstitutional because it violated the First and Fourteenth (equal protection) amendment rights of minor parties like the Green Party of Connecticut (GPC). This decision calls into question the assumption of Connecticut’s campaign finance law that all political parties in Connecticut are equal but some political parties are more equal than others.
Instead of fixing the law in the legislature this year by addressing the judge’s concerns, some of the very people who have a conflict of interest in defending the old Citizens’ Election Program (CEP), including Connecticut’s Attorney General Blumenthal and Governor M. Jodi Rell, have decided to appeal the decision.
The Judge’s decision (http://www.acluct.org/downloads/GreenPartyDecisionAug27.pdf) and the inconvenient facts exposed in the decision show the CEP’s solution is simultaneously the problem. Judge Underhill confirms and validates in his decision that the CEP diminishes minor party “political opportunity” by enhancing major party’s candidates’ relative strength. It does this by providing candidates with “windfall levels” of funding that are an “impermissible subsidy for major party candidates, rather than a permissible substitute for those traditional sources of funding,” Underhill said. He also recognized the law is cleverly crafted to add “additional qualifying criteria for minor party candidates that are so difficult to achieve that the vast majority of minor party candidates will never become eligible to receive public funding at even reduced levels.”
Tim McKee, spokesperson for the CGP said, “This is an important victory because this law has been held out as a model for other states to follow and to even possibly use in Congressional races. But the restrictiveness, which effectively shut out third parties and independent candidates, was ruled unconstitutional by a federal judge.”
How difficult are the “additional qualifying criteria” for minor parties under CEP, which includes huge petitioning requirements? For a full grant under the CEP, minor parties needed to collect the validated signatures of 20 percent of the people who voted in the last election for each office sought. For example, in the Connecticut 2006 gubernatorial election over a million votes were cast. In 2010 the GPC, under the CEP would have to collect 224,683 valid signatures to qualify for a full grant. In addition as many signatures are discounted, independent parties have to collect twice as many as is required. So the real number of signatures that must be collected in order to gain entrance into the CEP for the office of governor is over 400,000. How many signatures do the Democratic or Republican candidates for governor have to collect under CEP? The answer is none.
Steve Fournier, CGP’s other co-chairman, added “We will push for the General Assembly to treat all political parties equally by scrapping the excessive petitioning and matching funds requirements. If a candidate qualifies for the ballot, that candidate should receive full funding. The General Assembly can quickly and easily amend this law to make it constitutional.”
Judge Underhill also pointed out the unique difficulties facing minor party candidates seeking to connect with members of the electorate without name recognition or major party identification to help them. He also said Connecticut does not require private property owners or merchants, such as grocery stores, to give access to their property to signature gatherers.
Former CT Governor Weicker , who was successfully elected as Governor on a third party line in 1990 (A Connecticut Party) and is a former Republican U.S. Senator with significant name recognition and political base, indicated in a deposition in the lawsuit that it is unlikely he would have qualified as a minor party candidate under the recently reversed CEP. Weicker further testified that the organization expenditures and matching fund trigger in the CEP would put minor party candidates who lack “unlimited resources” at a “permanent disadvantage.” In Weicker’s opinion, participating major party candidates are “virtually assured of maintaining a spending advantage” over any self-financed minor party candidates. Weicker believes election outcomes are affected, as the matching funds ensure an independent candidate will never be able to outspend his participating opponent.
The CEP system did allow minor parties to get a reduced monetary grant of a third or two thirds of the maximum grant if they collected signatures from 10 to 15 percent (respectively) of the people who voted in the last election. The CEP eliminates the petitioning requirement for minor parties during the next election cycle if the candidate for governor or other state office got between 10 and 20 percent of the votes in the election.
Like the proverbial chicken or egg dilemma, minor parties cannot get access to the grants because of the draconian petitioning and other discriminatory entrance requirements of the CEP and without upfront and timely access to the CEP they subsequently can’t effectively and fairly compete during and after the election.
In addition, Democrats and Republicans were allowed generous grants for primaries but minor parties were banned from getting such money. All candidates for governor had to additionally raise $250,000 in order to enter the CEP system and qualify for funding. This additional requirement is extraordinarily high when compared to similar campaign finance laws found in Maine and Arizona.
Underhill in his decision also pointed out if a Republican or Democrat candidate polled less than 20 percent of the total vote in an election, which happened on numerous occasions during the 2008 election, the candidate could still access CEP funding without petitioning. But a minor party candidate, who got less that 20 percent of the vote, was still required to qualify for a CEP subsidy through petitioning. Underhill reasoned that since neither candidate reached the magic threshold of 20 percent, then the Democratic or Republican candidate can’t be exempt from petitioning while the minor party candidate was not.
Under the Connecticut CEP all traditional Political Action Committees (PACs) are banned but paradoxically the “Organizational Expenditure” provision of the CEP law allow 366 political party town committee PACs and eight “legislative” party PACs the ability to spend additional money for just about every activity related to a candidate’s election just not within a candidate’s campaign fund. This “Organizational Expenditure” scheme essentially destroys the spending caps on campaigns thereby eliminating one of the keystones of good campaign finance reform. The mostly major party town and legislative committees are granted a spending maximum of $3,500 on state house races, $10,000 on state senate races, and “unlimited” spending on state wide elections under CEP. This is another windfall that undermines real campaign finance reform under this law. It is also one of the ways that a more sophisticated and pernicious form of “Corrupticut” can be given new life.
The Green Party of Connecticut is confident the Second Federal Appellate court will uphold Judge Underhill’s decision. Greens are working to get the state of Connecticut to stop defending a law that is indefensible and change the draconian petitioning and other unconstitutional requirements on minor parties found in this law.
Greens applaud Federal Judge Underhill’s decision because it supports the political opportunity of independent parties to enter the political stadium and the idea of a level playing field. His decision also moves closer to the day when everyone in the political system will have a fair chance to fully share in the funding that permits the electorate exposure to a variety of ideas and proposals that will assist them in making good choices.
Mike DeRosa is a litigant in the lawsuit Green Party of CT et al vs. Garfield et al. He is also a CT radio journalist and co-chair of the Green Party of CT. He wishes to thank the ACLU of CT for its assistance and support in litigating this lawsuit. You can reach him at firstname.lastname@example.org