The Connecticut Supreme Court heard oral arguments on September 13 in a case involving free speech rights of candidates for political office who receive public funds.
Background
In 2014, former state senator Joe Markley, and state senator Rob Sampson, both of whom were running for reelection, sent out a series of joint mailers that highlighted the differences between their political positions and those of former governor Dannel Malloy, who held office at the time.
In 2018, the State Elections and Enforcement Commission (SEEC) ordered Markley and Sampson to pay $2,000 and $5,000 in fines respectively for what it determined were violations of the state’s campaign finance laws.
In October 2014, shortly before the general election, the SEEC issued an advisory opinion stating that Connecticut’s campaign finance laws stipulate that a candidate committee cannot make a contribution to another candidate committee. In addition, candidate committees are only permitted to make expenditures to promote the candidate who established the committee.
The commission further found that Connecticut’s Citizens Election Program (CEP), which provides publicly funded grants to qualifying candidates’ campaigns, requires participating candidates to not spend funds for the benefit of other candidates.
In their 2018 ruling, the SEEC found that because Markley and Sampson’s ads made disparaging statements about Malloy and his record, they needed to make a joint expenditure with Tom Foley, the Republican gubernatorial candidate opposing Malloy in 2014.
In part, the ruling relied on Sampson and Markley, who argued the flyers critical of Malloy had nothing to do with the gubernatorial race, having applied for and received CEP grants. While Sampson and Malloy argued their role as legislatures is a check on executive authority, the SEEC found such a view would “permit legislative candidate committees to spend unlimited amounts of public money” granted to them for their own races on other races. By accepting CEP funds, the SEEC argued, Markley and Sampson, agreed to follow the program’s expenditure limits.
Markley and Sampson have been fighting the SEEC’s ruling since.
According to the Institute for Free Speech (IFS), a nonprofit organization whose mission is to promote and defend the First Amendment, which is representing Sampson and Markley, the SEEC’s rulings and the laws on which it is based violate the First Amendment.
“Campaign regulators cannot fine candidates for expressing their policy positions in a mailer; they cannot force candidates to find a willing third party if they are critical of a governor’s policy, and they cannot demand veto power over a candidate’s message.” IFS states in an online summary of the case.
A press release from Sampson’s office reiterated Sampson and Markley’s belief that the case is fundamentally about free speech:
“Our job as lawmakers is to debate and vote on matters of public policy. The governor is by far the most important actor in that process, and our comments on his proposals were entirely relevant to our campaigns and informative for the voters. We were offered the chance to settle without penalty with the SEEC, simply by saying we were wrong, but we chose to challenge their ruling, feeling confident that the Constitution protects us, and that nonsensical restrictions on speech must not be allowed to stand.”
Oral Arguments
Those points were at the forefront of arguments made by Charles Miller, a lawyer for IFS representing Sampson and Markley, during oral arguments in the case. Miller characterized the SEEC’s findings as a “direct restriction on speech,” which should be subject to strict scrutiny. Strict scrutiny is the highest legal standard that can be applied in reviewing laws that restrict speech and usually applies when government officials are restricting the content of a person’s speech. For any law that restricts the content of speech to be considered constitutional, government officials must demonstrate a compelling interest and prove that it cannot accomplish the same result through any other means.
Miller faced questions from Justice Andrew McDonald, who asked whether the commission would still be taking its position if Malloy was running unopposed or if he had not been directly named in the mailers.
Miller said that he didn’t know and that there were a number of positions that the commission could take. He further stated that McDonald’s question reflected the problem of vagueness in the case. Miller said there are “so many ways you can go and get to the point where it’s silly.” He referenced the inability to name Malloy in the mailings as a “he who can not be named” policy and questioned whether any reference to an identifiable politician could be construed as a violation if someone reasonably knew who they were referring to.
Justice Raheem Mullins questioned Miller about whether the SEEC’s finding really constituted a violation of speech. He noted that it seemed there was a way to send the flyers, requiring a contribution from Malloy’s opponent’s campaign, that Sampson and Markley did not follow.
Miller said that required his clients to be a “squeegee man” and makes them dependent on the participation of another candidate. He questioned what a candidate was supposed to do if no one wanted to make the contribution and noted that such a policy punished moderates.
Mullins also questioned Miller’s argument from the perspective that both Sampson and Markley had agreed to participate in CEP and abide by the program’s rules.
Miller responded that the agreement was driven by existing law and that the commission interpreted existing law, throwing in language that updated the state’s definition of what was a permissible expenditure. Miller added that beyond that the state “cannot require or impose a direct restriction on First Amendment rights of political speech under this program.”
The SEEC’s side was represented by Maura Murphy Osbourne, the deputy associate attorney general. Osbourne began her argument by highlighting that Markley and Sampson had agreed to participate in the CEP program.
She was questioned by McDonald about the statutory definition of an expenditure that clearly identifies candidates. McDonald noted that the language identifies a number of mediums that are regulated, but that not all forms of communication, such as palm cards, are listed.
Osbourne replied that it would probably be true that if Sampson and Markley had used the same language to attack Malloy on a palm card it likely wouldn’t have been a violation and that the SEEC would construe existing statutes to give “maximum breathing room to first Amendment rights.” She added that just because the legislature hasn’t listed all potential forms of communication doesn’t mean the ones that are listed are invalid.
McDonald continued his same line of questioning, asking how, if they were talking about speech, it was permissible to say one thing in one form of communication and not in another when both involved the same type of speech.
In response, Osbourne discussed the history of campaign finance laws as they apply to electioneering and said that state laws usually place a greater emphasis on mass communication as a greater area of concern in attempts to influence election outcomes.
McDonald asked if this meant the definitions constituted a permissible restriction on the time, place, or manner of speech. Such restrictions are usually subject to a lower level of scrutiny than attempts to regulate the content of speech, and are generally more permissible as long as they easily apply.
Osbourne said she doesn’t believe that fits with the rubric of campaign finance law.
Osbourne’s argument emphasized Sampson and Markley’s choice to seek CEP funding. She said that they had chosen to send out mailers after the SEEC issued its advisory opinion saying doing so was a violation of the program when they could have “very quickly cured the harm by reasonable allocation with speakers who could have engaged in the same speech.”
She said the First Amendment impact on their rights in the case is “nonexistent or negligible” as they could have either engaged in the same speech in a number of different ways or stayed in the private finance world and not had taxpayers fund their speech.
In his rebuttal, Miller said this created a two-tiered system of speech, where those who were independently wealthy could finance whatever speech they wanted and those who had to participate in CEP would be subject to different standards.
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