Updated: Federal Judge Overturns Public Campaign Financing, State Promises To Appeal
by Christine Stuart | August 27, 2009 11:52 PM
Posted to Courts
While he praised the state’s effort to increase public confidence in state elections, a federal judge on Thursday ordered an immediate end to Connecticut’s fledgling public campaign finance system, calling it unconstitutional.
After two years of argument and deliberation, U.S. District Court Judge Stefan Underhill ruled in favor of the Green Party, which argued the system created in 2005 imposed an unfair burden for minor party candidates seeking to qualify for matching campaign funds through a state grant program.
The Citizens Election Program “imposes an unconstitutional, discriminatory burden on minor party candidates’ First Amendment-protected right to political opportunity,” Underhill wrote in his decision.
In the 138-page decision Underhill concluded that the system provided candidates with “windfall levels” of funding for their campaigns, artificially enhanced the strength of the two major parties, made it difficult for minor party candidates to qualify, and discouraged minor party candidates from participating.
Underhill’s decision focused on the increased burden a minor party candidate must meet in order to qualify for the matching state grant.
Under the current law a minor party candidate qualifies for a matching grant if a previous member of their party received a certain percentage of the vote during the previous election cycle. If no minor party candidate participated in the previous election then a candidate must gather a certain percentage of signatures from voters.
These two criteria don’t have to be met by major party candidates.
“CEP’s different treatment of major and minor party candidates imposes an unconstitutional, discriminatory burden on minor party candidates’ exercise of fundamental rights for no compelling reason,” Underhill wrote.
Rep. Chris Caruso, D-Bridgeport, one of the main proponents of the legislation which was implemented in 2006 said Friday morning in a phone interview that he believes the law is constitutional and respectfully disagreed with Underhill’s assessment of the program—which was created as way to eliminate special interest money.
Attorney General Richard Blumenthal announced Friday afternoon that he will immediately seek a stay of the decision, while he files an appeal with the 2nd Circuit Court.
“The judge recognizes that there is a compelling public interest, but fails to give it sufficient weight as is required under Supreme Court precedent,” Blumenthal said.
Karen Hobert Flynn, vice president for state operations at Common Cause, said during the court proceedings the judge said a number of times that he would consider staying the decision while the case is appealed. She said if the judge grants the stay then the system will continue to operate and “hopefully legislative leaders will stay committed to the program.”
Secretary of State Susan Bysiewicz said this is an “inopportune time in the election process,” for such a decision to be rendered. She said it’s problematic because it “changes the rules in the middle of the game,” when the state is one year away from its first statewide election with candidates for constitutional office.
In 2008, 83 percent of the state Senate candidates made use of public funding and 74 percent of House candidates made use of public funding, Bysiewicz said. Of those 236 candidates that qualified for the matching state grant, at least five of them were minor party candidates, she said.
Jeff Garfield, head of the state Elections Enforcement Commission, said public financing returned democracy to the citizens of Connecticut. He said 97 percent of contributions to candidates in 2008 came from ordinary citizens and three-quarters of the sitting legislators were elected to office using public grants.
The fact that five minor party candidates qualified for state grants means “the qualifications are reachable and the court was wrong,” Garfield said.
But most of Underhill’s decision concentrated on the additional qualifications minor party candidates must achieve in order to qualify for matching funds.
When the legislature wrote the legislation, it was “rightfully concerned with fringe candidates and the possible drain on the public fisc,” when it wrote the portions of the law Underhill focused his decision on, Garfield said.
David McGuire, an attorney with the Connecticut ACLU, who represented the Green Party in the case, said the court disagreed with the state.
The current law “arbitrarily made it much easier for major party candidates to run for office, while making it exceedingly difficult for minor party candidates to get access to campaign funds,” McGuire said.
He said the law went as far as to give major party candidates access to more funding, if a minor party candidate was able to raise a certain level of funding. In doing this, the law “chilled minor party candidates’ political speech,” he said.
“Connecticut’s campaign finance law explicitly discriminates against minor party and independent candidates by providing direct governmental subsidies to major party candidates on terms that deny the same benefits to minor party and petitioning candidates,” Mark Lopez, a cooperating attorney with the ACLU said in a statement Friday.
The state’s Republican Party Chairman Chris Healy also applauded the court’s decision.
“Thursday’s decision by the U.S. District Court was a constructive first step toward restoring free speech and competitive, open elections in Connecticut,” Healy said. “It unfairly excluded third-party efforts and punished those candidates who would choose to not burden the taxpayers by subsidizing those who did and were unable to match private sector support.”
Even though she’s a Republican, Gov. M. Jodi Rell sent out a statement Friday afternoon announcing her support of the appeal.
“I cannot, and will not, let Connecticut return to the days of unfettered special interests controlling our electoral process,” Rell said in the statement. “If necessary, we can amend the law to address the concerns of minor parties.”
Funded by a proceeds from the sale of abandoned property, the state’s public campaign finance system contains between $40 million and $60 million. It has been the target of Republican criticism with respect to their desire to use the money to help solve the state budget crisis.
Comments (34)
Posted by: Ken Krayeske | August 28, 2009 2:14 AM
What follows is all idle speculation from a basic reading of Federal Judge Stefan Underhill's decision.
But the question becomes "Where do we go from here?" Underhill's rejection of the Clean Elections Program as unconstitutional begs two questions - first, will the legislature create a replacement law fitting Underhill's guidelines, and second, does this decision benefit minor parties?
For the former, I doubt the legislature will get it together prior to the 2010 election. I hope it proves me wrong. But I doubt it. It will be 2012 before we see another publicly financed campaign in Connecticut.
For the latter, I think Underhill's depiction of the pallid state of competitive democracy in Connecticut is an eye opener. In the short term, the status quo continues to hurt minor parties, but in the long term, this case and its certain subsequent reforms will benefit minor parties, provided that minor party candidates can build ground games better than they have had before.
My first bet is that the state appeals the decision to the Second Circuit. What happens there is up in the air - Supreme Court, anyone?
Yet Underhill's decision is precise, crisp and well-reasoned, and so heavy on the numbers that it is almost numbing. In the end, he issued an injunction to stop Garfield and Blumenthal from enacting the program.
Underhill drew from many facts - Lowell Weicker's A Connecticut Party history and on Jon Green's testimony of WFP's philosophy of party building and not actually running to win against the law.
More thoughts here:
http://www.myleftnutmeg.com/diary/11712/judge-rejects-ct-clean-elections-program
Posted by: ctkeith | August 28, 2009 8:25 AM
Why Appeal?,
Both the Democrats and Republicans understand exactly how to operate in the old system and were perfectly comfortable in it.
Enjoy your "win" Ken.
Posted by: robn | August 28, 2009 9:01 AM
THANKS A LOT GREENS,
Not only did you and ego-crank Ralph Nader hand election 2000 to a bunch of neo-con psychopaths, but now you've destroyed a landmark public financing program thats had great success in diminishing the influence of lobbyists election contributions in our legislature. For $4.70 per resident, we were able to reduce the influence of lobbyists and thanks to the Greens, the bulls are back in the China shop.
sheesh!
http://library.publicampaign.org/
Posted by: mary | August 28, 2009 9:11 AM
Seems like the greens wanted to throw the baby out with the bath water. Proving you were right, doesn't mean things turn out right. So now instead of appealing to voters, candidates wil once again appeal to lobbyists, and the rich...Nice job..I'm sure "green" issues will be at the front of the line when it comes to political action when you're trying to compete with the Sullivan/Leshanes and Gaffney/Bennetts...ugh
Posted by: Bruce | August 28, 2009 9:13 AM
robn, I think you're giving the program a little too much credit. What evidence do you have that this had any effect on lobbying?
This system was created by and for the two major parties, who already enjoy significant advantages over independent and third party candidates. If they were really interested in fair elections, they could have made equal funds available to everyone and they could have made these funds equally available to all candidates, blind of party affiliation.
Posted by: Aldon Hynes![[TypeKey Profile Page]](http://www.ctnewsjunkie.com/nav-commenters.gif)
| August 28, 2009 9:37 AM
I received and read the beginning of the judge's ruling early last night and wrote a fairly long post with my thoughts about the ruling. I was holding off posting it because I had been hoping to receive statements by various people in the suit.
I haven't received them yet, so I'm putting up my initial comments and will add additional details when I get some statements.
It is worth noting that while I do hope that the state appeals the decision and asks for an immediate stay, which I believe there are more than adequate grounds for, I also believe that the program can be improved to provide better access to minor parties.
I should note here that my wife Kim Hynes removed herself as an intervenor-defendant in the case when she started working at Common Cause to avoid any potential conflict of interest issues. I should also note that my opinions on this are solely my opinions and not that of people involved in the suit. On the other hand, since much of Kim's work over couple of years has been to get people to understand and participate in the Citizens' Election Program, I have a significant interest in the outcome of the suit.
In a nutshell, I believe that Judge Underhill based his decision on incorrect information, particularly about the level of funding and the possibility of minor party candidates to receive funding. Likewise, I believe that his decision is overly broad in striking down the whole program instead of just the manner in which minor party candidates qualify for funds.
Finally, it is my understanding that he ignores precedent established in other states that permit what he has forbidden.
Based on this, I hope there is a quick appeal to the Second Circuit and that the decision gets stayed until the decision can be heard in the Second Circuit.
For more details, please read my blog post about the Ruling on Green Party Case Against the Connecticut Citizens' Election Program on my personal blog.
Posted by: ctkeith | August 28, 2009 9:38 AM
Rumor has it Chairman Healy and all his lobbyist freinds are making a HUGE Thankyou card to send to the Green Party for the giant increases in money and influence they'll reap thanks to the Greens.
No Check will be attached though because they know how those Greens hate having big money involved in politics.
Posted by: THREEFIFTHS | August 28, 2009 10:00 AM
To all I am sick and tired
of the people blaming Ralph
Nader for the 2000 election
lost. Al Gore lost for these reason.
1. Al Gore own state did not vote for him!!!
2.African Americans was Illegal take off voter rolls.
You want to blame someone,Blame the clowns on the Supreme Court!!!
Posted by: Lefticus | August 28, 2009 10:38 AM
Better yet, examine who funded the "Green's lawsuit." It was funded by corporate, conservative lobbyists (Association of Connecticut Lobbyists). The Greens have proven once again that they are lounge chair, elitist liberals. The Green's have once again thrown the poor, the disenfranchised and working families under the bus. They always do it with a tear in their eye and the plea that if only the rest of us would do what they say that they wouldn't have to spank us so badly.
Posted by: jon pelto | August 28, 2009 10:47 AM
Shocking!
I have to say I'm stunned - stunned that the judge would (1) rule this way and (2) destroy the entire program.
The judge outlines his concerns - but the solution makes the problems he identifies even worse.
Shocking is all I can say....Shocking!
Posted by: Promote Liberty | August 28, 2009 11:05 AM
Big Government Attracts Big Money - CT Campaign Finance Reform
http://lpct.org/Articles/Marc_Guttman/Marc_Guttman_Article_6.html
Posted by: Promote Liberty | August 28, 2009 11:07 AM
It is not the right to contribute to campaigns that needs reform, but rather the practices of our representatives who sell favorable legislation to cronies, highest bidders and appetizing voting blocks. Our government, income and liberties are not saleable items. The Republicans and Democrats have been the gatekeepers of our government and have been selling out for years.
Our representatives are voted back into office 95 percent of the time, despite their overstepping of legal restraints. The courts, despite knowledge that we are a constitutional republic designed to protect the individual from the tyranny of the majority, the wealthy and the unified, have allowed representatives to do so through legislation. It is because our government has extended its power beyond constitutional limits that special interests are attracted to its power and big spending. Our government was accepted to protect citizens from force and fraud, not to initiate force against its citizens.
A publicly financed campaign system is not fair. It steals from citizens to promote other citizens and their ideas. It would force many to promote Democrat and Republican agendas, for example, that they believe are deleterious, which they are. These parties already pay themselves billions of our money. Their presidential candidates receive millions of taxpayer dollars. The several Democratic presidential candidates in 2004 received hundreds of thousands of taxpayer dollars until the party's nomination was accepted at the Democratic National Convention, which cost taxpayers $40 million, same as the Republican National Convention.
Connecticut's law would also make it near impossible for independent and third party candidates to compete with the financed, older parties' candidates, as the requirements to receive public funds are not only different for them, but difficult to achieve. Moreover, philosophically principled candidates like Libertarian candidates, who generally do not accept public dollars to promote themselves or even to advance liberty, would find it even harder to compete in a publicly-financed system.
In addition to ballot-access and closed-debates impediments, campaign finance reform such as this is yet another obstacle to Connecticut's third-party and independent campaigns competing in a system already rigged to maintain the incumbent duopoly.
If you prefer to get big money and the corruption it breeds, out of Connecticut politics, vote for Libertarian candidates who understand the appropriate functions and legal limitations of government, who do not sell government power and citizens' rights to those willing to take it. What special interest, other than nonaggression and liberty, is going to buy that?
Posted by: Aldon Hynes![[TypeKey Profile Page]](http://www.ctnewsjunkie.com/nav-commenters.gif)
| August 28, 2009 12:36 PM
FYI, Kim is tweeting some of the press conference from the Secretary of State and Attorney General You can follow Kim at @khynes2000. In addition, I've added her tweets into a CoverItLiveStream
Posted by: robn | August 28, 2009 1:10 PM
BRUCE,
Its axiomatic that donors donate to candidates that either believe in or are willing to back the donor's interests. Therefore, public financing allows candidates to make their decisions free of donor influence.
PROMOTE LIBERTY,
Unlike the Supreme Court, I don't believe that money equals free speech, and in todays media driven world, big money drowns out the free speech of others. Pay for fairness at the election level or pay through corruption in the marketplace...your choice.
KEN,
Read the law and use some common sense man. If an Independent candidate can get 10% of voters signatures and then get 20% of the vote, he/she gets full public funding. If a candidate can't hope for this very minimal attainment, why run at all? This is not a barrier to worthy candidates...its a filter to keep unserious yahoos from wasting taxpayer dollars.
http://tinyurl.com/n4rrxq
Posted by: Bob Richard![[TypeKey Profile Page]](http://www.ctnewsjunkie.com/nav-commenters.gif)
| August 28, 2009 1:15 PM
We need both: a multi-party system and public financing. We can't sacrifice one for the other. That means that public financing has to provide a reasonably level playing field. Instead of whining about small-party "spoilers", lets put our heads together and come up with financing formulas that are fair to legitimate small parties and still exclude the weirdos and cranks that everyone is (or should that be "claims to be"?) worried about.
Posted by: Joe Bananno | August 28, 2009 1:39 PM
Green Party = Frauds
The finance of this suit says it all. And there is never a tear in their eye like some old mexican actor playin an indian watching plastic bags fly by.. Dems and Repubs join them and claim the same rights as is rewarded the official parties. That is positions,contracts,involvement of the gov't dispensery
Posted by: arrrg | August 28, 2009 2:39 PM
It could be argued that democracy by majority rule hurts minor parties too... but we still do it.
Posted by: Ken Krayeske | August 28, 2009 2:46 PM
Attacks on the Green Party are expected, and on some levels, not without merit.
On other levels, the attacks are fraudulent and do not deal with the heart of the issue. Underhill's ruling demonstrates the paucity of democratic debate and discourse we have in this community known as Connecticut.
Take away the Greens participation in the 2006 gubernatorial campaign, and do we have ever learn that the state police maintain a list of political activists who are "persons of interest"?
No. If that is the only benefit this state received from Thornton's 2006 bid for gov, it was worthwhile.
Third party runs, no matter how disorganized, under funded and oppressed they are, serve a valuable function in this republican democracy. This law prejudiced those runs further.
This is hardly the end of the line for this law, and who knows how it will turn out? The Second Circuit and maybe even the Supreme Court will have a whack at it.
In the meantime, it is good to see that the federal bench knows how to identify a rat when it sees one.
Posted by: Bruce | August 28, 2009 2:51 PM
THREEFIFTHS, There is a third reason. Bush was elected because DEMOCRATS VOTED HIM IN! In Florida, 12% of registered Democrats voted for him -- that's 8-10 times as many Dem votes as Nader got. Dems love to point the finger, but really they can blame themselves?
Mary, The judge was the one who threw out the entire decision, not the Green Party.
Posted by: robn | August 28, 2009 3:18 PM
KEN,
If a candidate can't hope to get more than 20% is a three way race, then why run? If your answer is, as you've suggested "scandal revelation", then your using a run for office as a surrogate for simple reporting.
This public financing law is fair and smart.
Posted by: ctkeith | August 28, 2009 3:21 PM
Ken,
I can hardly wait for your "this is not about me" post.
Posted by: Ken Krayeske | August 28, 2009 4:46 PM
RobN
Bruce Morrison barely hit 20% in the three-way with Weicker and Rowland.
Does that mean Morrison should not have run in 1990? He almost cost the Democrats major party status. And their last few candidates running for governor have been landslided. According to Underhill, those are not competitive races either.
There are many purposes to run third party races. Do you think Social Security is a good idea? Norman Thomas ran on it as a Socialist for years before Roosevelt adopted it - Thomas never came close to 20%. But I'll argue that Thomas' ideas have shaped in no small way 20th Century American life.
Underhill was backed into a corner by a bad law made with good intentions (isn't there something about the road to hell being paved with those things?). Knowing that he couldn't line item veto the law, Underhill did the only thing he could - he enjoined it. The fight will continue over this.
P.S. - Keith, this is all about me, always has been about me, always will be about me. It is a Ken-Centric Universe, so I am pretty lucky to be Ken.
At what point, does the Keith the political humorist replace the bitter Keith who had to walk to school 12 miles, up hill both ways?
Posted by: robn | August 28, 2009 5:09 PM
KEN,
Its reasonable to expect a third party candidate who wants public financing to have proof of a statistical chance of coming close to a win. 20% is a pretty low threshhold. If the candidacy is only intended to promote policy, let that candidate fund themselves.
BTW, FDR was the one who passed Social Security legislation and way before that lots of ordinary people fought hard in the streets.... long before Norman Thomas came around.
Posted by: Bruce | August 28, 2009 5:55 PM
robn, Here is what your link says:
"Petitioning [and Minor Party] candidates must meet the same qualifying requirements, but public funding allocations may be lower..."
How is that fair? That is completely outrageous. The people who wrote this should be ashamed.
In a 3-way race, 20% of the vote is 63% of the way towards victory. Since when do you START a campaign with most of your votes already in the bag? This is an ENORMOUS hurdle -- one that the major party candidates don't even have to worry about. If this is the litmus test for a serious contender, why not apply the standard to to ALL candidates?
How can anyone possibly say with a straight face that this is fair? Might as well throw in free lunch and ice cream for all the major party candidates while they're at it. Thanks for the link, though I wish I had never read it.
Posted by: Doug | August 28, 2009 6:34 PM
hi robn...
just wanted to let you know that i created a tiny url for the link you posted in your comment.
long links are still kind of prone to creating a bug on our site, pushing text outside of the content margin... so i changed it but it still works.
so that goes for everyone... use please take a moment to use tinyurl.com! it's free!
failing that, you can use simple html to create a link.
thanks everyone for posting... this has been a great discussion of a fairly shocking decision
-doug hardy
ctnewsjunkie behind the scenes editor guy
Posted by: Sal | August 29, 2009 10:45 AM
FYI to all who think that this opens the door to big campaign contributions from lobbyists, the ban on lobbyist contributions was upheld by the federal court and, even with Underhill's decision, they are still banned from making contributions. BTW, for those of you who think this legislation removed lobbyist influence, there were more lobbyist than ever this year at the capital, only difference is they get to keep more money in their pockets and didnt lose an ounce of influence. For the most part the lobbyists love the ban.
Posted by: robn | August 29, 2009 11:41 AM
BRUCE,
You need to read deeper (digital page 28) but in a nutshell, here's how its fair. In a typical two way race a candidate needs over 50% of the votes to win. Thats a VERY serious challenge for VERY serious candidates. Under the current public finance law, a third party candidate only needs to get petition signatures equal to 10% of the last votes to immediately get 1/3 of the general election grant provided to major party candidates. Later, if that candidate can get over 20% of votes, full funding is given. The first step is a hurdle for sure but its a VERY LOW BAR... and as I stated before its a necessary filter to keep unserious candidates from wasting taxpayer dollars that KEN has all but admitted is often more about soapboxing than winning.
Posted by: I Shoot photos | August 29, 2009 2:41 PM
The Dems are upset because this was the only way for them to corner the market on getting minimum economic support from taxpayers.
They have always tried to get contributions from the little guy with $5 here and there. With the current system they got more BANG for those $5 checks with the state kicking in the rest.
Now going back to the old way, $5 is just that $5!!!
They should take the burden off the taxpayers and say that what ever your campaign raises is what it raises, just you can't take contributions from Businesses and Lobbying firms.
The current system does everything to protect the Democrats, it has nothing to do with fairness.
What happens if a taxpayer doesn't want to give up their $4.20 for politicians? The then have no say.
Posted by: I Shoor photos | August 29, 2009 2:42 PM
"Posted by: ctkeith | August 28, 2009 9:38 AM
Rumor has it Chairman Healy and all his lobbyist freinds are making a HUGE Thankyou card to send to the Green Party for the giant increases in money and influence they'll reap thanks to the Greens.
No Check will be attached though because they know how those Greens hate having big money involved in politics."
AND YOU KNOW THIS BY..??????
Posted by: truthtopower | August 30, 2009 8:18 AM
The declaration of unconstitutionality of a major piece of legislation deserves more than a sidebar in the New Haven Independent.
The public financing of campaigns is a huge issue at a time when our major institutions appear to be controlled by powerful interests and not the voters.
If this is to be a nation of laws, then those laws have to apply equally to all the parties.
The legislation was fatally flawed and Judge Underhill said so. Blaming the litigants won't overcome those flaws, so get to work and either fix the law or start over.
Posted by: bruce | August 30, 2009 3:46 PM
Robn, the reason this is unfair is because it is not applied equally. Say a candidate wants to run for office and has a choice between running as a Democrat or under a minor party. Don't you agree that the same candidate would have lower hurdles to run as a Democrat? We can argue about how high the hurdles are, but you cannot argue that this system doesn't make it decidedly easier for major party candidates to get their hands on the money.
Third party and petitioning candidates are treated as second class candidates with a special set of hurdles not faced by the major parties who wrote the legislation. Why make any distinction at all? The major parties are just strengthening their duopoly on the political system and making it harder for others to break in. Shameful.
Posted by: Joshua Katz | August 30, 2009 10:41 PM
In 2008, 83 percent of the state Senate candidates made use of public funding and 74 percent of House candidates made use of public funding, Bysiewicz said. Of those 236 candidates that qualified for the matching state grant, at least five of them were minor party candidates, she said.
---
This is supposed to be a statement about how the system was fair? For every 231 candidates from two parties, 5 candidates from all other parties in the state qualified?
How about this - let candidates from those two parties meet petitioning requirements, just like all other candidates have to do. If you want a socialist funding system, let them qualify exactly the way other candidates do. If they miss a deadline, as both the Rs and Ds did in TX, keep them off the ballot, the same way many parties were kept off the ballot in CT.
Posted by: Jon Searles | August 30, 2009 11:10 PM
There is no reason to appeal this decision.
I find it disgusting that Mr. Blumenthal would suggest that the supposed benefits of the system outweigh the admitted violation of minor parties' constitutional rights.
The answer is to fix the law to provide both the benefits of the law AND compliance with the constitution. While they are at it they can eliminate campaign funds for unopposed candidates.
In East Hartford alone we had State Senator LeBeau and State Rep Genga happily waste our money running unopposed.
As far as frivolous candidates go, it is unlikely that they are capable of raising enough money to qualify under the terms provided for major parties. If they can they must not be frivolous after all.
It is disingenuous at best to trot out the fiscal conservatism bit in defense of excluding minor parties while simultaneously funding multi-million dollar slush funds for legislative leadership and paying major parties to run unopposed.
Posted by: Promote Liberty | September 8, 2009 8:09 PM
This is a good commentary in the University of Pittsburgh School of Law Jurist Legal News and Research:
http://jurist.law.pitt.edu/hotline/2009/09/court-ruling-against-connecticut.php
Monday, September 07, 2009
Court ruling against Connecticut campaign finance law helps level political playing field
10:23 AM ET
Joshua Katz [Legislative Director, Libertarian Party of Connecticut]: "The Libertarian Party of Connecticut joined with the state's Green Party to file a lawsuit [PDF file] in federal court challenging the state's Citizens' Election Program. We maintained that this program was unconstitutional in that it imposed asymmetrical burdens on minor parties vis-a-vis the Republican and Democratic parties in elections within the state. While billed as an opportunity for political unknowns without access to fundraising to compete on an equal footing with more established candidates, the effect of the law was rather to give additional advantages to established candidates and incumbents. We were gratified that the court agreed with us, maintaining that the law imposed a severe burden on minor party candidates without imposing a similar burden on candidates from major parties.
The Citizen's Election Program (CEP) offered public funding for candidates for various offices, with the amount of funding dependent on both the office sought and the amount of money already raised. In addition, a candidate who hoped to seek CEP money had to comply with various restrictions on his own fundraising. Because of the large amount of money that a candidate needed to raise before qualifying for this public funding, the impact was to simply magnify any difference in fundraising ability present at the outset of the race, not to reduce it. An unknown candidate would have great difficulty meeting the required hurdles, while his better known opponent would easily qualify. As if this weren't enough, though, the law went further and actually allowed some major party candidates to qualify without demonstrating any particular level of public support, while all minor party candidates had to jump over numerous hurdles.
It might be objected that failing to qualify for funding is not a hindrance, just the absence of aid, and that anyway, Libertarians oppose public funding of campaigns, and so it is odd (to say the least) that we would complain about not being able to qualify for such funding. Such an analysis, though, misses a crucial point. A candidate who does not qualify for funding, while his opponent does, is not left no better or worse off than he would be if such funding did not exist - he is much worse off, as his opponent now has more money to campaign against him.
Now, the hurdles have been justified on the basis of the need to save money. After all, the state cannot be expected to fund anyone who announces that he is running for office, and even qualifying for ballot access is a relatively low hurdle - being on the ballot does not, according to this argument, a viable candidate make. So the fundraising requirement and other hurdles limit public funding to those who are viable. Yet consider that most minor party candidates run in elections with at least 3 candidates, and that the hurdles amount to requiring 20% support before qualifying for funding. In a tight race, a candidate winning with 35% or 40% would not be unlikely. This is particularly true for minor party candidates (whereas a Republican cannot expect his Democratic opponent and his Green opponent to split the vote evenly, a Libertarian may hope that his two opponents will), and so a 20% requirement would necessitate, before qualifying for funding, that the candidate be more than halfway to victory! This is after the minor party candidate spent most of his initial funding, and a great deal of time, achieving ballot access, which his opponents were not required to do. Furthermore, he must achieve this without public funding, after both of his opponents received public funding!
By striking down this law, the court took a great step forward in ensuring open access to the political process for Connecticut residents. Unfortunately, many Connecticut elected officials, all from major parties, have stated that they will seek ways to keep the laws in effect, both by appealing and by creating new laws which skirt the judge's decision. What needs to be addressed, though, is the state's web of special privileges for some parties at the expense of others. The last thing we need is a new program that will reinforce these privileges by other means. A plan of action for opening access to the political process would need to include entirely scrapping the CEP, followed by a fundamental revision to the laws for ballot access. While some would simply drop ballot access requirements, many believe that doing so will simply crowd the ballot, making it hard for serious candidates to be heard. A reasonable solution, though, does exist - all parties could be subjected to equal ballot access requirements for each office. In any case, removing public financing of campaigns is an important step. It must be remembered that public financing laws are written, considered, and voted on by incumbents from major parties. It would be unreasonable to expect those incumbents to pass laws making it easier for challengers to succeed, and in particular for minor parties to succeed. More generally, is it possible to not understand the serious dangers presented by increased political control of elections? When incumbents make decisions about which candidates receive what funding, rather than those decisions being made in a decentralized manner by each citizen who decides to contribute money to a campaign, how can a fair outcome be expected?"
Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh.