Petition Filed in Supreme Court for Review of Minor Party Provisions of Connecticut Public Financing Law Upheld as Constitutional

The Connecticut law provides a grant of public funds to any participating statewide or state legislative major party candidate who qualifies for the program by raising a prescribed amount of small contributions of $100 or less.  Minor party candidates can qualify for public funding if a candidate for the same minor party received a set percentage of the vote for the same office in the last election, or by gathering a specified number of petition signatures and raising qualified contributions. 

Once a candidate qualifies, he or she receives a grant of public funds for the primary election and, if nominated, for the general election as well.  The candidate must agree to abide by spending limits in exchange for the public money.

The constitutionality of the minor party provisions in the Connecticut law is being challenged by the Green Party of Connecticut, the Libertarian Party of Connecticut, the American Civil Liberties Union of Connecticut and individual plaintiffs. They are represented by the American Civil Liberties Union Foundation.

A group of supporters of the law, including Common Cause Connecticut and Connecticut Citizens Action Group, and Audrey Blondon and Tom Sevingy of Connecticut, intervened in the Connecticut case when it was filed to defend the constitutionality of the Connecticut public financing law.  

On July 13, 2010, the U.S. Court of Appeals for the Second Circuit rejected the Green Party’s challenge that the minor party qualification provisions of the law unconstitutionally discriminate against minor party candidates. 

The cert. petition filed in the Green Party case last week asks the Supreme Court to overturn this decision.

"The stakes are high in this case," said Bob Edgar, President of Common Cause. "Connecticut’s public financing program is a model for the nation. Candidate participation rates in the Citizens’ Election public financing program have been above 70%, and that means new people with fresh ideas have an opportunity to win office and those who are elected can reject the kind of pay-to-play politics we see in Washington D.C. It also means that the bulk of candidates in Connecticut believed that this voluntary system worked for them and was a valuable alternative approach for financing their elections." 

"Connecticut’s law is constitutional," said Karen Hobert Flynn, Vice President of Common Cause, who led the successful fight to enact the Connecticut public financing law. "The plaintiffs in this case are making the erroneous claim that the Citizens’ Election program unfairly burdens minor party candidates," Hobert Flynn said. "Nothing could be further from the truth. Under this program, minor party candidates who work hard have been able to participate in this program and have access to never before available financial resources."

The intervening defendants will be represented in the Supreme Court by the "Project Supreme Court" pro bono legal team established and managed by Democracy 21 President Fred Wertheimer. The legal team in this case will be led by WilmerHale and its partners, Seth Waxman, former U.S. Solicitor General and Randy Moss, former head of the Justice Department’s Office of Legal Counsel, and by Scott Nelson, an attorney with the Public Citizen Litigation Group.

"This is the first time that the constitutionality of public financing provisions for minor parties has come before the Supreme Court since 1976 when the Court in Buckley v. Valeo, 424 U.S. 1 (1976), upheld the minor party provisions in the presidential public financing system," according to Wertheimer, who also will be a member of the legal team.

"Given the holdings in the Buckley decision, there is no basis for this challenge to the Connecticut law and the cert. petition should be rejected by the Court," Wertheimer said.

The interveners, along with the state of Connecticut, will urge the Supreme Court to deny the cert. petition and let stand the Second Circuit Court of Appeals decision.  If review is granted, the interveners will join with the state of Connecticut to defend the law in the Supreme Court.

In its July, 2010 opinion, the Second Circuit rejected the Green Party’s challenge that the minor party provisions of the Connecticut law unconstitutionally discriminate against minor party candidates. The Second Circuit, relying on the Supreme Court’s decision in Buckley, held that the Connecticut public financing law was enacted  "in furtherance of sufficiently important governmental interests," and that the law’s qualification criteria and distribution formulae do not "unfairly or unnecessarily burden[ ]the political opportunity of any party or candidate."

As the Second Circuit stated, the Supreme Court held in Buckley that the presidential public financing system it reviewed there was "a congressional effort, not to abridge, restrict, or censor speech, but rather to use public money to facilitate and enlarge public discussion and participation in the electoral process, goals vital to a self-governing people." 424 U.S.at 92-93.  The Connecticut public financing system serves the same goals.

The Second Circuit, citing Buckley, held in the Green Party case that "public financing as a means of eliminating improper influence of large private contributions furthers a significant governmental interest."

The Second Circuit, again relying on Buckley, also held that the Connecticut law could constitutionally distinguish between major and minor party candidates in setting qualification standards. The Court quoted Buckley, which said that the "Constitution does not require the Government to finance the efforts of every nascent political group," for "[s]ometimes the grossest discrimination can lie in treating things that are different as though they were exactly alike." 
 
Further, according to the Second Circuit, "a public financing system may condition public money on a showing of popular support" because limiting an election to a small number of strong candidates "serves the important public interest against providing artificial incentives to splintered parties and unrestrained factionalism…That is, to fund every minor-party candidate would risk a fractured and chaotic election, "artificially foster[ing] the proliferation of splinter parties."

The Connecticut case has potential important significance for federal and state public financing systems, which commonly distinguish between major and minor party candidates in ways similar to the Connecticut system. Based on Buckley, and for the reasons cited by the Second Circuit, this distinction has been viewed as important in order to ensure that minor party or fringe candidates are not eligible for significant public funds on the same terms as major party candidates.