Connecticut Campaign Finance Decisions from Second Circuit: Green Party v. Garfield

In two related opinions today, the Second Circuit ruled on challenges to Connecticut’s Campaign Finance Reform Act (CFRA).  

In Green Party v. Garfield (Green Party I)  the Second Circuit panel affirmed the district court ruling that certain discrete components of Connecticut’s Citizen Election Program (CEP) providing public funds for elections violate the First Amendment.  These so-called “trigger provisions,” which include the CEP’s “excess expenditure provision” and “independent expenditure provision”—violate the First Amendment by impermissibly restricting the right of candidates and other individuals and organizations to spend their own funds on campaign speech.  The Second Circuit reversed the district judge’s holding that the CEP violated the First Amendment  and equal protection clause as applied to “so-called minor political parties and their candidates.”  (emphasis in opinion). 

 Green Party I provides the background of the Connecticut statute, including the scandals involving the former governor which involved state contractors and notes that Connecticut became known as “Corrupticiut.”

The precise nature of this scandal is very relevant to the panel’s decision in  Green Party II: the court upheld the Connecticut statute’s ban on contractor contributions but found unconstitutional the ban on lobbyist contributions.   The Court noted “because the recent corruption scandals in Connecticut have created an appearance of corruption with respect to all exchanges of money between state contractors and candidates for state office” the “outright ban on contractor contributions was justified (i.e., closely drawn to meet the state’s anticorruption interest) because even a severe limit on contractor contributions would allow a small flow of contributions between contractors and candidates and would, as a result, likely give rise to an appearance of corruption.”   However,  the “situation is different with lobbyists. The recent corruption scandals had nothing to do with lobbyists, and thus there is insufficient evidence to infer that all contributions made by state lobbyists give rise to an appearance of corruption.”   The panel also held the statutory limit on solicitations of contributions unconstitutional, reasoning that this was closer to core political speech than a contribution itself.

Beyond the interest in this specific statute, the relevance of Citizens United has become an issue in every new campaign finance case.   (We’ve previously discussed applications of Citizens United here, here and here, and have discussed reactions to the case here, here, and here, and Paula Z. Segal, 3L, CUNY School of Law, has discussed the case and its applications - - - including a Tenessee Attorney General opinion here.)

The panels’ decisions use of Citizens United is undramatic and many of the references occur in footnotes.  In Green Party I, footnotes 9 and 10 cite Citizens United for clarifying the difference between strict scrutiny and exacting scrutiny.  Footnote 9 states:

Compare Citizens United, 130 S. Ct. at 898 (explaining that “strict scrutiny” requires “the Government to prove that the restriction furthers a compelling interest and is narrowly tailored to achieve that interest” (quotation marks omitted)), with id. at 914 (explaining that “exacting scrutiny” requires “a substantial relation” between the restriction and “a sufficiently important government interest” (quotation marks omitted)).

In Green Party II, the court cites Citizens United  again for the standard, but later writes:

Although the Court’s campaign-finance jurisprudence may be in a state of flux (especially with regard to campaign-finance laws regulating corporations), [FEC v. ] Beaumont and other cases applying the closely drawn standard to contribution limits remain good law. Indeed, in the recent Citizens United case, the Court overruled two of its precedents and struck down a federal law banning independent campaign expenditures by corporations, but it explicitly declined to reconsider its precedents involving campaign contributions by corporations to candidates for elected office. See 130 S. Ct. at 909 (“Citizens United has not made direct contributions to candidates, and it has not suggested that the
Court should reconsider whether contribution limits should be subjected to rigorous First Amendment scrutiny.”).

Perhaps the most important use of Citizens United is in the court’s analysis of the “anti-corruption” government interest:

the anticorruption interest recognized by Buckley [ v. Valeo] and other cases is “limited to quid pro quo corruption” and does not encompass efforts to limit “[f]avoritism and influence” or the “appearance of influence or access.” Citizens United, 130 S. Ct. at 909-10 (quotation marks omitted). “The fact that speakers may have influence over or access to elected officials does not mean that these officials are corrupt,” and favoritism and influence are “[un]avoidable in representative politics.” Id. at 910 (quotation marks omitted). Influence and access, moreover, are not sinister in nature. Some influence, such as wise counsel from a trusted advisor—even if that advisor is a lobbyist—can enhance the effectiveness of our representative government.

It is not clear that Green Party I and II would have been decided differently pre-Citizens United. 

RR