A lawyer for state Democrats asked a Hartford Superior Court judge Thursday to dismiss a lawsuit from Republicans seeking to stop the party from using money designated for federal candidates to help re-elect Gov. Dannel P. Malloy.
Judge Antonio Robaina heard arguments on a motion to dismiss a request for an injunction on the party’s spending of federal dollars in support of Malloy. The Republicans’ concerns stem from state election laws, which permit companies that do business with the Malloy administration to donate to the federal account.
Democrats have used the fund to pay for at least three pro-Malloy mailers, despite having asked federal regulators whether the practice was permissible. Late Wednesday night, the Democratic Party withdrew its request from Federal Election Commission, which was expected to take up the subject Thursday.
In the courtroom, David S. Golub, an attorney for the Democratic Party, sought to have the lawsuit dismissed as well. He told the court that the Democrats were not only permitted to use the federal account to pay for the pro-Malloy mailers, but were required to under federal law.
Golub said a federal campaign law known as McCain-Feingold, classifies as federal election activity, any campaign literature that includes get-out-the-vote information, voter identification or voter registration information. That applies as long as there are federal candidates on the ballot. In this case, members of Connecticut’s congressional delegation are up for re-election.
The vast majority of the space on the Democrats’ two-sided mailers is devoted to either praising Malloy or criticizing Republican Tom Foley. However, they do include short lines like “Vote for Democrat Dan Malloy for Governor on Tuesday, November 4.” Another line specifies what time the polls are open.
“If you include in any mailer, information about what time the polls are open and there’s a federal candidate on the ballot, you are engaged in federal election activity,” Golub said. Paying for the mailers with the federal account is “what the law requires. We’d be in violation of federal law if we did anything different,” he said.
The judge called the argument “interesting.”
“Putting politics aside, and I’m not as fascinated by politics as I once was, by adding two sentences” to the mailer, a party “almost chooses to exempt or include themselves in certain regulations,” Robaina said.
“Any reasonable person would find that it’s an advertisement urging people to vote for Governor Malloy’s re-election,” the judge said. “It seems to me, if you could just eliminate those two sentences, the ad would be treated in an entirely different way.”
Echoing the good government group Common Cause, Republican attorney Proloy K. Das said the two lines should not “magically” turn the mailers into get-out-the-vote efforts and they should not be used to shield Democrats from state law.
Das also rejected arguments by the Golub and William Bloss, a lawyer for Malloy’s campaign, that Republicans lacked standing in court and had failed to exhaust their other administrative options. He said they had to seek a court remedy because regulators would not act before the election.
“The election is going to be done and every day [Democrats are] spending more money,” he said. “It can’t be that just because the defendants waited until Oct. 15 to brazenly violate the law, that we have no remedy.”
Das said he was surprised that the Democrats were simultaneously looking to have the issue dismissed in court and withdrawing their advisory request from regulators.
“It’s surprising to me to see the defense trying to avoid a decision on this,” he said. “If we all want to comply with the law, why would they avoid a decision?”
Sen. Len Fasano, R-East Haven, appeared in court with Das. He spoke about the history of Connecticut’s campaign laws and asked the judge not to dismiss the case. Fasano also questioned again why the State Elections Enforcement Commission declined to be a part of the Republican’s’ lawsuit, despite issuing advisory opinions which have been critical of the Democrats’ plans to fund the mailers.
“Just because they [the SEEC] won’t, does not mean you shouldn’t,” Fasano told Robaina. “This is about the rule of law, the beginning and end of protecting the laws on the books so people can’t circumvent them. The integrity of the state of Connecticut’s election system is at hand.”
Golub called Fasano’s comments “inappropriate” and “holier than thou” arguments.
“I wasn’t aware we were doing campaign speeches in court today,” he said. “What I thought we were doing in court today was actually referring to the law.”
Robaina said he was done taking notes. “I put my cap back on my pen.”