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Campaign Finance Ruling Has Lawyers, Legislators Scrambling

Edmund Mahony

July 14, 2010

As the clock continued to run down on primary and general elections, lawyers sparring over the state's campaign finance reform law returned to court Wednesday in a hurried effort to save the landmark legislation, parts of which were held to be unconstitutional a day earlier by a federal appeals court.

U.S. District Judge Stefan R. Underhill arranged a conference call among lawyers, the purpose of which participants said was to set a schedule to determine whether the provisions of the law judged unconstitutional could be removed from the legislation without threatening what remains — core provisions establishing a system of publicly financed campaigns for all state offices.

While Underhill was giving the lawyers a timetable for formulating what could be conflicting arguments, legislative leaders were working at the state Capitol on parallel, legislative measures to repair the parts of the campaign finance law the appeals court says are legally flawed. Among the measures that appeared increasingly likely at the Capitol is a special legislative session that some lawmakers hope can be convened within a month.

Several participants involved in the various legal repair efforts called the task daunting. It became more so after Republican candidate for governor Thomas C. Foley filed another challenge of the law's constitutionality late Tuesday.

Foley, a millionaire businessman who is largely self-financing his campaign, sued the state in federal court in an effort to overturn a "trigger provision" in the law that could — under some legal reasoning — provide supplemental, public campaign grants to Lt. Gov. Michael Fedele, his opponent in the Republican gubernatorial primary election on Aug. 10.

Foley's suit appears to be superfluous. The U.S. 2nd Circuit Court of Appeals struck down the trigger provisions. They are parts of the law that distribute supplemental campaign grants to publicly financed candidates who are outspent by wealthy candidates who, like Foley, choose not to participate in the state's public campaign financing system.

Even though the appeals court said the trigger provisions violate the free speech and association rights of privately financed candidates, the lawyers in the case said there are questions whether the decision is enforceable for as long as 21 days. The delay is designed to allow parties to the appellate decision to seek a review by the full circuit court. At the close of the 21 days, jurisdiction — or mandate for the case — passes to Underhill.,

"During a conference call today, Judge Underhill notified the parties that he will decline taking action — including issuing an injunction — until after receipt of the mandate from the Second Circuit, which must be done within 21 days or sooner from the date of the Second Circuit's ruling," state Attorney General Richard Blumenthal said..

Foley's suit appears to be effort to elicit a speedy court order to guarantee that Fedele and his running mate, Danbury Mayor Mark Boughton, would be unable to obtain new supplemental public campaign funds — or spend what they already have received — during the run-up to the primary. Lawyers and legislators involved in the broader constitutional issues of the campaign reform law said the legal relief sought by Foley could result in pressure to speed up their effort to salvage the campaign law.

Foley's suit also has been assigned to Underhill.

Subhed

The schedule set by Underhill requires lawyers in the broader constitutional case to submit initial briefs within 14 days and response briefs after an additional 10 days. He asked the lawyers to address the question of whether the law's trigger provisions can be removed from the law without threatening the legal viability of what remains. Campaign finance advocates who have been litigating the state law for years have disagreed on the question in the past.

Participants in the call also said Underhill indicated that, once he gets the case from the appeals court, he will issue a narrowly drawn court order prohibiting the state from enforcing the law's trigger provisions.

Foley's suit wants a similar order blocking the disbursements of supplemental trigger grants to the Fedele-Boughton campaign — but faster. What's more, he wants the order to prevent political advertising companies from taking Fedele-Boughton money.

Underhill set a more fast-paced schedule for arguments in the Foley case: Initial briefs are due by Friday.

Blumenthal issued a statement Wednesday on what is likely to happen in the broader case involving the campaign finance law:

"Upon receiving the mandate from the Second Circuit, Judge Underhill has said that he will issue an injunction only against those provisions of the state campaign finance law deemed unconstitutional — leaving the remaining provisions intact for at least 30 days after that.

"In the meantime, the parties may submit legal briefs on whether additional relief affecting the public finance system is warranted if the state legislature does not act to address the rulings. We are reviewing our legal options, preparing our position, and will release it immediately upon filing"

State Senate Majority Leader Martin Looney of New Haven said the legislature hopes to address the law's flaws.

"We asked our attorneys to inform Judge Underhill that the legislature does have an interest in preserving the statute to the extent that we can," Looney said. "I think that everybody is fully committed to having the public finance system continue. And we want to find a way, given the strictures imposed by the court's ruling, to have a workable constitutional statute. I think we are going to be proceeding on parallel tracks for a while and hopefully we can come to conclusions at the same time."