HARTFORD, CT — State election regulators laid out their case Thursday during a sometimes contentious four-hour hearing in which they tried to prove that mentioning Gov. Dannel P. Malloy’s name on mailers in 2014 without asking his opponent or the Republican Party to pay for it violated state election laws.
“This is a hearing about whether permissible expenditures were made. That’s it,” William Smith, a State Elections Enforcement Commission attorney, said in his closing arguments.
He said the statements opposing Malloy made on the joint mailers by Sen. Joe Markley, R-Southington, and Rep. Rob Sampson, R-Wolcott, were cast in such a way to oppose an individual who was running for statewide office in 2014. He said by joining the Citizens Election Program and receiving tens of thousands of dollars to run their campaign meant they agreed to restrict their spending to candidates who were in the race.
Technically, election regulators said they could have mentioned Malloy’s policies, if they asked the Republican Party or its gubernatorial candidate, Tom Foley, to help pay for the mailers. But they didn’t.
Markley, Sampson and their attorney Michael Cronin said the application of the state law is trampling their constitutional right of free speech.
“Simply saying this is a voluntary program and you forfeit your rights as you enter is simply not correct,” Cronin said.
He said his clients feel to this day that they complied with election laws and the playing field was changed when the advisory opinion was released two weeks before the November 2014 election. The advisory opinion, according to Cronin, was only released following communications with an attorney for the Democratic Party and an executive session in which it was adopted.
“If the law was so clear, then why did we need this advisory opinion?” Cronin said.
He said for every joint mailer Markley and Sampson did they asked for the SEEC’s help in apportioning the costs of the mailer to the two campaigns.
He said what happens when there are multiple candidates running for governor.
“Would it have been ok if we went to the Green Party and asked for $20?” Cronin said.
He said the statute doesn’t say the opposing candidate has to be from a major party.
“The statutes are vague on this,” Cronin added.
He said the law does implicate free speech and it does implicate separation of powers. He said the legislative branch should be able to criticize the executive branch.
“It doesn’t rise to a constitutional crisis where you can start trampling on free speech,” Cronin said.
Sampson said his mailers tried to explain his position on the state budget and saying that he voted against Malloy’s tax hike was not promoting the defeat of Malloy—it was simply trying to communicate where he stood on the issue.
“It said I disagree with the policy of a sitting governor,” Sampson said.
He said the message to voters was that he planned to be a “check on Gov. Malloy and his agenda.” He said it wasn’t about calling for the defeat of Malloy.
He said he believes the mailers which he designed himself were expenditures directly related to his campaign as described by state election laws. He said he didn’t feel they advocated for the defeat of Malloy.
Sampson and Markley said their mailers for 2012, when Malloy was not on the ballot, used the exact same wording as they did in 2014.
Smith said the reason they’re having the hearing is because Markley and Sampson don’t believe they have to comply with the law in the first place.
“I don’t think there’s a nefarious act here,” Smith said. “… But I have to let them know that an advisory opinion is more than a gentle nudge.”
The fine could be as low as $2,000 for Markley and his treasurer Barbara Roberts and as high as $27,000 for Sampson, who sent out more mailers criticizing Malloy than Markley.
Briefs on the case are due by Sept. 20. It’s unclear how soon after that a decision will be made.
Markley and Sampson have already vowed to appeal any unfavorable decision to Superior Court.