CRIPJEN

By Mike DeRosa

Recently 2nd district federal court justice Underhill in a well thought out and farsighted decision overturned Connecticut's campaign finance law and declared it unconstitutional because it violated the 1st and 14th (equal protection) amendment rights of minor parties like the Green Party of CT. This far reaching legal decision calls into question the assumption of Connecticut's campaign finance law that all political parties in Connecticut are equal but some political parties are more equal than others.

Instead of fixing the law in the legislature this year by addressing the judge’s legitimate concerns, Connecticut's Attorney General Blumenthal and some of the very people who have a conflict of interest in defending the old Citizens' Election Program (CEP) have decided to exercise their constitutionally protected right to appeal this decision.

The Judge's decision (http://www.acluct.org/downloads/GreenPartyDecisionAug27.pdf) and the inconvenient facts that are exposed in the decision show that the CEP is a solution that is simultaneously the problem. Judge Underhill confirms and validates in his decision that the CEP diminishes minor party "political opportunity" by enhancing major party’s candidates’ relative strength by providing candidates with "windfall levels" of funding that are an "impermissible subsidy for major party candidates, rather than a permissible substitute for those traditional sources of funding". He also recognizes that simultaneously the law is cleverly crafted to add "additional qualifying criteria for minor party candidates that are so difficult to achieve that the vast majority of minor party candidates will never become eligible to receive public funding at even reduced levels." These qualifying criteria include the use of huge petitioning requirements and other unconstitutional demands on minor parties.

How difficult are the "additional qualifying criteria" for minor parties under CEP? For a full grant under the CEP, minor parties needed to collect the validated signatures of 20 percent of the people who voted in the last election for each office sought. For example, in the CT 2006 election for governor 1,123,466 total votes were cast. In 2010 the Green Party of Connecticut under the CEP have to collect 224,683 valid signatures to qualify for a full grant. Historically it can be shown that minor parties have to collect close to twice as many signatures to validate petitioning requirements. The real number of net signatures required for entrance into the CEP for the office of governor is over 400,000. How many signatures did the Democratic or Republican candidates for governor have to collect under CEP? The answer is none. Judge Underhill also pointed out the unique difficulties facing minor party candidates seeking to connect with members of the electorate without name recognition or major party identification to help them. He also pointed out that Connecticut does not require private property owners or merchants, such as grocery stores, to give access to their property to signature gatherers.

Former CT Governor Weicker , who was successfully elected as Governor on a third party line in 1990 (A Connecticut Party) and is a former Republican U.S. Senator with significant name recognition and a significant political base, indicated in a deposition in the lawsuit that it is unlikely that he would have qualified as a minor party candidate under the recently reversed CEP. Weicker further testified that the organization expenditures and matching fund trigger in the CEP will put minor party candidates who lack "unlimited resources" at a "permanent disadvantage." In Weicker’s opinion, those provisions mean that participating candidates are "virtually assured of maintaining a spending advantage" over any self-financed or non-participating minor party candidates. Because the matching funds mean that an independent candidate will never be able to outspend his participating opponent, Weicker believes the outcomes of elections will be affected.

The CEP system did allow minor parties to get a reduced monetary grant of a third or two thirds of the maximum grant if they collected signatures from 10 to 15 percent (respectively) of the people who voted in the last election. The CEP eliminates the petitioning requirement for minor parties during the next election cycle if the candidate for governor or other state office got between 10 and 20 percent of the votes in the election. Like the preverbal chicken or egg dilemma , minor parties can’t get access to the grants because of the draconian petitioning and other discriminatory entrance requirements of the CEP and without upfront and timely access to the CEP they subsequently can’t effectively and fairly compete during and after the election.

In addition, Democrats and Repub¬li¬cans were allowed generous grants for primaries but minor parties were banned from getting such money. All candidates for governor had to additionally raise $250,000 in order to enter the CEP system and qualify for funding. This additional requirement is extraordinarily high when compared to similar campaign finance laws found in Maine and in Arizona.

Judge Underhill in his decision also pointed out that If a Republican or Democrat candidate polled less than 20 percent of the total vote in an election, which happened on numerous occasions during the 2008 election, they can still access CEP funding without petitioning but a minor party candidate who got less that 20% of the vote was still required to qualify for a CEP subsidy through petitioning. Judge Underhill reasoned that since neither candidate reached the magic threshold of 20% why should one candidate be exempt from petitioning while the minor party candidate was not.

Under the CT CEP all traditional Political Action Committees (PACs) are banned but paradoxically the “Organizational Expenditure” provision of the CEP law allow 366 political party town committee PACs and eight “legislative” party PACs the opportunity to spend additional money for just about every activity related to a candidate’s election and spend it in coordination but not inside a candidate’s campaign fund. This “Organizational Expenditure” scheme essentially destroys the spending caps on campaigns thereby eliminating one of the keystones of good campaign finance reform. The mostly major party town committees and legislative committees are granted the political opportunity to spend a maximum of $3,500 on state house races, $10,000 on state senate races, and “unlimited” spending on state wide elections under CEP. This is another windfall that undermines real campaign finance reform under this law. It is also one of the ways that a more sophisticated and pernicious form of “Corrupticut” can be given new life.

We are confident that Judge Underhill’s decision will be upheld by the 2nd federal appellate court and we hope that the state of Connecticut will soon come to its senses and change the draconian petitioning and other unconstitutional requirements on minor parties found in this law and that it will stop defending a law that is indefensible.

We applaud Federal Judge Underhill’s decision because it supports the political opportunity of minor parties to enter the political stadium and supports the idea of a level playing field inside that political stadium. His decision also moves us closer to the day when everyone in the political system will have a fair chance to fully share in the funding that permits the electorate exposure to a variety of ideas and proposals that will assist them in making good choices.

Mike DeRosa is litigant in the lawsuit Green Party of CT et al vs. Garfield et al. He is also a CT radio journalist and co-chair of the Green Party of CT. He wishes to thank the ACLU of CT for its assistance and support in litigating this lawsuit. You can reach him at

smderosa@cox.net

Tags: Election Integrity