Lawyers for the Democratic Governors Association and state election regulators will try to work out their differences before a magistrate in Bridgeport after both were questioned at length on the DGA’s challenge of Connecticut campaign finance law.
U.S. District Judge Janet Hall ordered the settlement talks after hearing oral argument Wednesday on the case, in which the DGA claims the State Elections Enforcement Commission and Connecticut campaign laws restrict its First Amendment right to spend money on behalf of Gov. Dannel P. Malloy in the coming election.
Hall grilled lawyers for both sides but warned the DGA’s attorney, Marc Elias, not to draw conclusions from her questions.
“I ask a lot of questions and anyone who tries to make sense of those questions is wasting their time,” she said.
But the judge questioned whether the association had standing to bring a lawsuit against regulators who had not yet taken any enforcement action against the association. She also asked whether the law regulators intend to enforce unfairly punishes a candidate like Malloy simply because he associates with a group like the Democratic Governors Association.
The group filed a preemptive lawsuit hoping to avoid being prosecuted by the SEEC for spending money this fall on behalf of Malloy, who has actively raised money for the group and has served as its former finance chair.
The judge told Elias that the DGA needs imminent fear of an enforcement action in order to bring a successful case against the SEEC.
“We do—” Elias began.
“Where? In the air? It has to be impending,” Hall interjected. “Right now, I don’t have anything like that other than what sounds like an effort to avoid the potential of being investigated.”
The judge questioned how the state could ever decide whether DGA spending on behalf of Malloy was independent or a “disguised contribution” if regulators were never permitted to investigate the spending.
At one point in the proceedings Hall suggested she had not “gotten [Elias] through the courthouse door yet” as to whether the DGA had standing to argue the case.
The judge later took up Elias’ position as she questioned Assistant Attorney General Maura Murphy Osborne, who argued on behalf of the SEEC. Hall suggested there was a drafting error in the Connecticut’s campaign finance law that would allow regulators to find illegal coordination between Malloy and the DGA, even if there was a strong “firewall” between the organization’s finances and the governor.
Murphy Osborne argued that the relationship between the group and the candidate would be only one element the SEEC would consider in an investigation, but the judge said that association might be the only thing they had to consider under the law.
“You could find coordination. You might not do that, but that’s his challenge, that you could, on the face of it,” she said. “… The question is whether the statute sets up a construct in which an agent of the state can make a finding that triggers consequences based solely on an associational fact.”
Despite opposition to the lawsuit from good government groups like Common Cause, Malloy told reporters in April he believed the DGA acted “appropriately” in filing the lawsuit to protect itself from prosecution.
The state Republican Party has attempted to intervene in the case on behalf of the SEEC, however Hall did not rule on that motion Wednesday. She said she would give the DGA time to oppose the motion. Elias accused Republicans of “sitting on their hands” and waiting until the last-minute to file as an intervenor.
