The Connecticut Supreme Court ruled in favor of former state Senator Joe Markley, and Sen. Rob Sampson, R-Wolcott, in a free speech case going back to the 2014 election when Markley and Sampson were cited and eventually fined for mentioning then Gov. Dannel Malloy in campaign mailers while receiving money through Connecticut’s Citizens Election Program (CEP).
Under the rules of CEP, candidates receiving the funds voluntarily can only use the money to campaign against their direct opponent. The State Elections Enforcement Commission (SEEC) eventually issued fines of $2,000 and $5,000 in 2018 against Markley and Sampson, who took the matter to Connecticut’s court system, which initially upheld the SEEC’s ruling.
Sampson and Markley then took the case to the Appellate Court and finally the Connecticut Supreme Court, backed by the Institute of Free Speech, a public interest law firm with a mission “to end widespread abuses of government power.”
The SEEC had argued before the Supreme Court that since the CEP program is voluntary, the candidates accepted the rules by which CEP is governed and that Sampson and Markley were trying to establish a “loophole” through which public campaign funds could be used to fund “unlimited attack ads in other races,” according to the Supreme Court decision.
The ruling, however, does not affect the overall rules guiding the CEP. Rather it was specific to Markley and Sampson’s campaign advertisements and how candidates can reference the political milieu during their campaigns.
“Although a compelling governmental interest is served by a condition that precludes publicly funding candidates from using program funds to support or oppose candidates in other races, we conclude that the commission violated the plaintiffs’ First Amendment rights with respect to the five advertisements at issue in this case because they could reasonably be understood to be something other than an appeal to vote against Governor Malloy,” the Supreme Court wrote.
The advertisements sent by Markley and Sampson spoke about their opposition to Malloy’s and other Democrats’ policies at the time, including tax increases and increased government spending. The Supreme Court found that Markley and Sampson’s communications could not “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 Governor Malloy and the Democratic Party.”
David Keating, president of the Institute for Free Speech, says the ruling means Connecticut can’t restrict campaign speech if the candidate is receiving CEP funds, but that those CEP funds still cannot be used to expressly campaign for or against a candidate for another office, rather than their own.
“In this case you had candidates who wanted to define what they believed and what they would do if elected by defining it in terms the average voter understood by referring the the governor’s programs,” Keating said. “This is a very common thing for candidates to do.”
Keating goes on to say that there are likely a lot of Connecticut candidates in the upcoming election who would probably like to say they oppose Donald Trump, which could be seen as violating CEP rules. It’s a rather fine line to be drawn, however.
“The government can’t go into the fine details of what you want to say,” Keating continued. “If you’re just mentioning a candidate or criticizing another candidate’s policies, like speaker of the house or governor, but you’re not using those funds to campaign against that candidate, or expressly advocating for the election or defeat of that candidate, then there’s very little the government should be able to do. This is a good thing.”
“The Court said that the SEEC was wrong here,” said Mario Cerame, a Connecticut attorney who specializes in free speech cases. “But the Court also suggested there may be other cases where these regulations are applied legally. You still can’t use money raised in one race for another race. But sometimes a candidate is functionally the same as an issue.”
“We’ve been pretty confident throughout this that at some point a court would agree with us and I’m pleased that it happened,” Markley said. “It was normal political communication, and it was overreach by the SEEC. I’m glad the court swatted them down.”
Reached for comment, Sampson said the decision was ten years in the making and that he has faced continuing political attacks from opponents citing the SEEC’s 2014 decision and fine. Sampson said he and Markley were given the opportunity to take a “slap on the wrist” and make it all go away but chose to fight the matter in court.
“I’m thrilled obviously. We knew we were right all along. You can’t be silencing political speech because it’s inconvenient to you.” Sampson said. “I’m thrilled they did the right thing.”
In an emailed statement, Michael J. Brandi, executive director of the SEEC, said they are currently reviewing the decision with the Office of the Attorney General to “determine how to move forward,” and that the issue is “notoriously tricky.”
“Of course, we respect the Court’s decision and will work to provide appropriate guidance to the regulated community. As the Court wrote, it’s an issue of first impression and a notoriously tricky application of the law,” Brandi said. “Connecticut is in the vanguard of campaign finance reform, so that’s to be expected. We’re obviously relieved that the Citizens’ Election Program is preserved.”
Connecticut’s CEP program was created to essentially limit the influence of big money donors on state political campaigns. Political candidates apply for and can be granted certain amounts of campaign funds based on the office they are seeking and whether they have an opponent. According to the Connecticut Comptroller’s transparency website, the state doled out $20.3 million in CEP grants in 2023.
“We felt that we were right about sending these campaign pieces out when we did it, that it was a proper communication to the voters in our district,” Markley said when reached for comment. “We refused to settle with the SEEC when they gave us the chance because we didn’t want to admit that we were wrong in something that we did not believe we were wrong about.”
“It’s really kind of case that hasn’t been decided anywhere before,” Keating said. “I’m really pleased to see how the court analyzed this and ruled for Markley and Sampson.”
**This article was updated to include a statement from SEEC Executive Director Michael J. Brandi**
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Why does this law firm who claims its primary purpose is to end governmental power abuse, call itself The Institute for free speech? Why does Inside investigator not state it is an arm of the Yankee institute? It all seems misleading to me.
Hello Pauline. Thanks for writing in.
I took a look at IFS’s website and they do not have their history listed on their About page. I was able to find a number for them though, if you are interested: 202-301-3300.
As for Inside Investigator, we are very transparent about our business and have had the following on our About page since day one: “Inside Investigator is an independently managed project of the Yankee Institute. That means Inside Investigator has management separate from Yankee Institute. Inside Investigator management oversees daily operations and determines content, completely independent of Yankee Institute.”
I hope this helps clarify how we do business. Please feel free to comment here with any additional questions or email me directly at conner@insideinvestigator.org.