The Democratic Governors Association filed a lawsuit in federal court Wednesday alleging that Connecticut’s campaign laws infringe on their First Amendment rights to spend money on behalf of Gov. Dannel P. Malloy.
Malloy, who is seeking reelection this year, has been a fundraiser for the DGA and member since winning his election in 2010.
The 32-page lawsuit says Connecticut’s campaign laws have “forced” the DGA into “a constitutionally untenable choice: it can avoid protected speech in which it seeks to engage; it can forego the support and participation of Connecticut’s citizens in raising the funds that it needs to maintain a robust national program; or it can entertain very real threats of investigation, fines, and criminal prosecution.”
It fears what will happen if it makes an expenditure on behalf of Malloy or against one of his opponents.
“If DGA engages in its desired course of conduct, it runs a serious risk of being prosecuted for violating the Challenged Provisions and Rulings. DGA faces an even greater risk of protracted and costly investigation for engaging in what is lawful, First Amendment-protected conduct,” the complaint states.
Essentially, the group believes that it would find itself back in court as soon as it begins spending money in Connecticut because the state Elections Enforcement Commission may raise questions about that spending. Since Malloy was a fundraiser for the organization, it would violate campaign finance rules if that money he raised found its way back to Malloy’s campaign for governor.
Malloy became the finance chair of the DGA in 2011 and helped it raise $20 million that year. His tenure as finance chair has since concluded, but he remains a member of the group.
Michael Brandi, executive director of the SEEC who is a named defendant in the lawsuit, said his office is aware of it and will be represented by the attorney general’s office.
Attorney General George Jepsen said they are still reviewing the complaint.
Andrew Doba, a spokesman for Malloy, said the DGA informed the governor’s office of the complaint as a courtesy just before it was filed Wednesday.
“The Governor’s perspective on this has always been very clear,” Doba said. “As soon as the Citizens United decision came down he said he thought it was the wrong decision because it would open up the floodgates to outside money coming into campaigns. He also has been very clear that he believes the playing field should be level. While this is not the landscape he would’ve chosen, he does believe that if organizations believe they need to take certain actions in order to ensure that level playing field they have every right to do so.”
Doba did not comment specifically on the lawsuit or the underlying 2013 law the DGA is challenging, which “established a new regulatory scheme governing persons that make independent expenditures.”
Cheri Quickmire, executive director of Common Cause Connecticut and Tom Swan, executive director of Connecticut Citizens Action Group, two groups who helped establish Connecticut’s clean election laws in 2005, called on Malloy to encourage the DGA to drop the lawsuit. Both said they are speaking to attorneys and may get involved in the future if the case proceeds.
The Democratic Governors Association played a role in Malloy’s 2010 gubernatorial campaign when it spent about $1.7 million on television ads criticizing his Republican opponent, Tom Foley.
With a $6 million limit on gubernatorial candidates participating in the Citizens Election Program, the legislature took steps last year to allow the state party’s to make unlimited donations to gubernatorial candidates in an effort to balance what is expected to be spending by outside groups.
Earlier this year, the SEEC issued an informal opinion offering guidance on the intersection of state and federal election law.
The complaint filed Wednesday by the DGA in federal court says that Connecticut’s definition of “expenditure” is so broad that it includes almost any message that refers to a candidate.
The DGA alleges that the SEEC “still presumes coordination in some cases.” In an opinion released by state election regulators a “close relationship” between a candidate and a spender and their sharing of “common values and goals” is sufficient, without more, to justify state investigation of protected political speech.
“By looking past the expenditure in question, and scrutinizing instead other forms of association between DGA and candidates who are involved in its national activities, the Challenged Provisions and Rulings violate the First and Fourteenth Amendments,” the complaint states.
The lawsuit seeks an injunction and declaratory relief. It asks the court to find that the definition of an expenditure is “unconstitutionally overbroad and vague” and that a candidate’s non-earmarked fundraising on behalf of the DGA cannot give rise to an expenditure being defined as not independent.