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Election Law Needs Change – Not Defense

ROBERT SATTER

October 11, 2009

Richard Blumenthal is probably the best attorney general in Connecticut history. He mounts his white horse and, with bugles blaring — bugles always blaring — charges forth to right all sorts of perceived wrongs. But I wish just once he would stable that white horse and muffle the bugles.

He should withdraw his appeal of the federal District Court's decision declaring the Campaign Finance Reform Act unconstitutional for discriminating against minor party candidates. The simpler, faster and better way to save that important law is for the General Assembly to amend it.

Judge Stefan R. Underhill, in his 138-page opinion, brilliantly exposes the fundamental unfairness of that law as it applies to minority party candidates. He identifies the constitutional right involved as that of "political opportunity" — the right of access to and participation in the political process. Referring to minor parties, he says that "the competition of ideas" offered by minority and dissident political views "is at the core of our electoral process, representative democracy, and First Amendment freedoms."

The state law distinguishes between major and minor parties. A major party is one whose candidate for governor received at least 20 percent of the votes cast in the previous general election. Clearly, only the Republican and Democratic parties meet that standard.

Under the campaign finance law, the candidates of all parties must meet the minimum criteria of raising a specific dollar amount in small contributions from a specified number of residents in their district to be eligible for public campaign funds. For example, a House candidate must raise $5,000 in amounts of $100 or less from at least 150 residents in his district. But the law imposes on minor party candidates one of two additional requirements not imposed on major party candidates.

One of these requirements is that a candidate of the minor party must have received 20 percent of the total vote cast for that office in the preceding general election in order to qualify for a full grant ($25,000 for a state representative). On a legislative district basis, that is virtually impossible for a minor party candidate.

In fact, if the same criterion applied to major party candidates in 2008, a major party candidate would not have been eligible to receive automatic public funding in fully 44 percent of the Senate and House districts (82 of 187) because in 2006 his political party either did not put up a candidate in that district or the candidate put up did not receive 20 percent of the vote.

The alternative requirement for minor party candidates is that for full public grants, they must obtain signatures on a petition equal to 20 percent of the total vote cast in the previous election for that office. With no party staff, that is an arduous task for such candidates. If they have to pay signature gatherers at the going rate of $1.50 a signature, the cost, even for a state representative candidate, could run more than $5,000.

Judge Underhill held that either of those requirements imposed such a discriminatory burden on minor candidates as to unconstitutionally deprive them of the political opportunity to participate in the political process.

Blumenthal argued that such criteria were necessary to save the state from paying campaign grants to small, splinter parties. Underhill refuted that concern by pointing to the experience of Maine and Arizona, which have public campaign finance laws with no additional qualifying criteria imposed on minor party candidates. Neither of those states have had an undue number of minor party candidates qualify for campaign funding.

Underhill noted that the bill Gov. M. Jodi Rell submitted to the legislature did not contain different criteria for minor and major party candidates. The judge implied in his opinion that such a change in the law would go a long way to making it constitutional.

Underhill's opinion is factually and legally so sound that an appeal to the Second Circuit Court of Appeals appears fruitless. But the appeal itself casts the pall of legal uncertainty over state funding for campaigns in 2010, which for the first time will include paying for gubernatorial races.

Sir Richard should dismount from his white steed, abandon his appeal, and let the legislature speedily amend the law so it will pass constitutional muster