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Does Campaign Finance Discriminate Against Minor Parties?

A Supreme Court ruling could topple the state’s system of public funding for campaigns

Gregory B. Hladky

June 15, 2010

You can’t get a much weirder political scenario than liberal Connecticut Green Party activists jumping for joy over a conservative U.S. Supreme Court order allowing wealthy Arizona candidates to spend lavishly on their own campaigns.

The connection is that Arizona and Connecticut have public campaign finance laws that give extra taxpayer dollars to candidates facing well-heeled opponents pumping big bucks into their campaigns, either from their own pockets or from private contributors.

Connecticut’s Green Party is challenging this state’s public campaign financing law on the grounds that it discriminates against minor-party candidates and acts as an “incumbent protection” for Democrats and Republicans. That case is now before the U.S. Second Circuit Court of Appeals in New York.

But the party’s lawyers also argued earlier this year that the Connecticut system of providing more money for candidates facing big-spending opponents was also unfair — and that was the exact issue in the Arizona case. If the appellate judges decide to follow the lead of the Supreme Court, it could overturn Connecticut’s law just as candidates head into the August primaries.

“This is going to open up a new chapter in this,” Mike DeRosa, Green Party co-chairman and candidate for secretary of the state, says of the latest blast from the increasingly right-wing Supreme Court majority. DeRosa wants the federal appeals court to immediately overturn Connecticut’s law.

DeRosa insists Connecticut’s public financing system “is very flawed.” But he also admits to “some cognitive dissonance” in using a conservative court ruling to help what he sees as a liberal democratic cause.

Beth Rotman, head of Connecticut’s public campaign finance system, is desperately hoping DeRosa is wrong about the potential impact of the Supreme Court order. She argues a decision now, just months before Connecticut’s state primaries, would create havoc for candidates relying on public financing.

“I don’t think the Second Circuit is interested in disrupting Connecticut’s elections,” she says. Rotman and other elections officials around the nation say they were astonished the Supreme Court would jump in and make a fundamental change in the rules this close to an election.

Rotman insists the Supreme Court order “is certainly not binding on Connecticut,” but called it “very troubling.”

Former Stamford Mayor Dan Malloy has already been granted $1.25 million in public financing for his Democratic primary campaign, plus an additional $937,500 grant to help him match the spending of his challenger, Ned Lamont. A millionaire businessman, Lamont has contributed $1.85 million of his own money (out of a total amount raised of $2.25 million) to his own campaign.

An angry Malloy called the Supreme Court order “politically and ideologically driven,” saying it’s another indication the high court’s conservative majority is seeking to reverse “50 years of U.S. progress in trying to get big money out of politics.”

Connecticut’s Republican primary contest could also be involved. Lt. Gov. Michael Fedele says he’s close to raising the $250,000 in small contributions he needs to qualify for matching state campaign funds. Both his Republican opponents in the governor’s race, former U.S. Ambassador to Ireland Tom Foley and Hartford business leader Oz Griebel have decided not to take public funding. Foley has already spent millions of his personal fortune on his race.

The Supreme Court court’s order came as a shock to Arizona officials. That state’s Republican governor, Jan Brewer, is facing a primary challenge from a wealthy businessman named Buz Mills, who’s already spent more than $2 million on his campaign. Brewer is slated to get $707,000 in public dollars for her campaign and was expecting to get another $1.4 million in taxpayer dollars because Mills had exceeded the Arizona campaign spending limits.

Critics of the Arizona law called the order “a victory for free speech.” They insist using public money to counter private spending restricts the political rights of privately funded candidates.

The Arizona court challenge was filed by the conservative Goldwater Institute and another organization called the Institute for Justice, rather peculiar legal bedfellows for an outfit like Connecticut’s Green Party.

Brewer will now have to campaign without that extra $1.4 million. Malloy would be in a different position if the federal appeals court decides to follow the lead of the Supreme Court.

In the event that Connecticut’s law is overturned and the Connecticut legislature doesn’t act within 30 days to correct any flaws, Malloy would get to keep that extra money and could then go out and raise money through private and special interest contributions.

Last year, a federal district judge declared Connecticut’s law unconstitutional. He said the law discriminates against minor-party candidates because even after they raise enough money to qualify for state funding, they also have to submit signed petitions. The same judge upheld the law’s prohibition on lobbyists and state contractors from contributing to state election campaigns. A lobbyist association is also challenging that ruling.

The Green Party’s lawyer, Mark L. Lopez, says his letter to the Second Circuit judges is “gently urging the court to take another look at this.” According to Lopez, the Supreme Court order “changes the playing field in a significant way.”

At the same time, Lopez isn’t getting his legal hopes up.

“It’s a cautious court in my opinion,” he says of the Second Circuit, explaining the appellate panel base in New York doesn’t rush decisions “unless they feel someone is being imminently harmed.”

“If they felt that way, I think they would have acted already,” Lopez adds.

DeRosa believes this Supreme Court “has made it very clear that money is free speech” and that its latest ruling could well swing the decision in Connecticut’s case.

“Of course I believe in spending limits on campaigns,” DeRosa says. He argues that Connecticut’s effort to reduce the influence of money on campaigns is simply “overkill.”

It’s kind of an awkward political stance for someone counting on a Supreme Court that seems determined to allow big money free rein in American politics.