CT Supreme Court Finds Public Financing Law Restricts Free Speech

The Connecticut Supreme Court concluded in an opinion Monday that the State Elections Enforcement Commission’s restrictions on advertising in publicly financed campaigns were overly broad and violated the free speech rights of two conservative Republican state lawmakers in 2014.

At issue was whether criticism of former Gov. Dannel P. Malloy’s fiscal policies by former Sen. Joe Markley of Southington and then-Rep. Rob Sampson of Wolcott in campaign materials was intended to further their own candidacies or improperly use their public grants to undermine the Democratic governor or help his Republican challenger, Tom Foley. In a unanimous opinion by Chief Justice Richard A. Robinson, the court ruled that a lower court erred in upholding the elections commission’s imposition of fines against Markley and Sampson, concluding that a blanket ban on mentioning candidates in other races violated their free-speech rights.

The decision opens the door to candidates for the General Assembly to use Donald J. Trump or Joe Biden as foils in their campaign advertising this year. The court sided with the two Republicans, who insisted their criticism of Malloy was an effective way to illustrate their principles and positions and not an illicit scheme to use their funding to assist Foley. “[W]e conclude that none of the communications at issue in this appeal could reasonably be construed as anything more than a rhetorical device intended to communicate the merits of the plaintiffs’ candidacies as bulwarks against the policies endorsed by Gov. Malloy and the Democratic Party,” Robinson wrote.

While the court found that the commission erred in fining Markley and Sampson, it left open the possibility it could have penalized them if their intent had been to influence the governor’s race and not their own. “You still can’t use money raised in one race for another race,” said Mario Cerame, one of the lawyers representing Markley and Sampson. “But sometimes a candidate is functionally the same as an issue. Opposing the person who voted for Obamacare because they supported it is not necessarily the same as opposing Obama.”

Sampson said the decision vindicated his position: While the public financing law requires the campaign grants be used to benefit the recipients, it does not infringe on their right to compare themselves or an opponent to someone in another race. “It weighed heavily on me, not for me personally,” Sampson said. “For me, it’s a symbol of whether or not we are going to maintain free political speech in Connecticut.”

The attorney general’s office and the State Elections Enforcement Commission had limited comment, saying they were reviewing the decision. “Of course, we respect the Court’s decision and will work to provide appropriate guidance to the regulated community,” Michael J. Brandi, the commission’s executive director and general counsel, said in a statement. “As the Court wrote, it’s an issue of first impression and a notoriously tricky application of the law.”

The vast majority of candidates for General Assembly participate in Connecticut’s voluntary Citizens Election Program, which provides financial grants to qualifying candidates who agree to abide by strict limits on fundraising and spending. It bans donations by state contractors and restricts those from lobbyists. Markley and Sampson were among the 27 Republicans targeted in complaints by Democratic legislative candidates for using public grants obtained under the voluntary Citizens Election Program to attack Malloy in 2014, when the Democratic governor won reelection in a rematch with his 2010 opponent.

The State Elections Enforcement Commission issued an advisory opinion shortly before the election stating that the use of the public grants was strictly to promote the recipients, not another candidate in another race. “Rob and Joe have consistently fought Gov. Malloy’s reckless spending and voted against his budget, which resulted in nearly $4 billion in new and increased taxes for Connecticut residents,” Sampson and Markley said in one shared mailer deemed violative by the commission.

The commission later obtained consent decrees from 25 of the 27 Republicans that essentially extracted promises to refrain from similar ads in the future. Markley and Sampson refused, and their cause was taken up by Virginia-based Institute for Free Speech. The commission eventually imposed fines of $2,000 on Markley and $5,000 on Sampson — $1,000 for each of the mailings that attacked Malloy.

“As the parties discussed in their briefs and at oral argument before this court, it is essential for candidates to be able to communicate where they stand on issues in relation to other candidates and public officials,” the court wrote. “The invocation by name of prominent political figures—some of whom may happen to be candidates elsewhere on the ballot in a particular election—will sometimes provide the most meaningful and effective way for a candidate to explain to voters their political ideals, policy commitments, and the values that they hope to bring to the office that they seek.”

The court essentially gave its blessing to anyone who invokes the names of Biden or Trump: “Being able to categorize oneself as, for example, an opponent of the ‘Biden Democrats’ or the ‘Trump Republicans’ is of unquestionable rhetorical value to a candidate seeking office in polarized times.”