Connecticut’s Supreme Court heard arguments Wednesday in the case of a pair of state legislators who contend that election regulators used their participation in a public campaign financing system to curtail their free speech rights.
The case stems from the 2014 re-election campaigns of former Sen. Joe Markley, R-Southington, and Rep. Rob Sampson, a Wolcott Republican who now serves in the state Senate.
Both candidates contested fines imposed by the State Elections Enforcement Commission for their use of public campaign finance grants to fund mailers that attacked then-Gov. Dannel Malloy, a Democrat who was also up for re-election that year. The regulators concluded that any spending to influence the governor’s race should have been offset by the state Republican party or its self-funded gubernatorial candidate, Tom Foley.
The Republicans disagreed and began a legal argument that was nearing its end Wednesday before the Supreme Court, nearly nine years later.
“What we have here is we have a direct restriction on political speech,” said Charles Miller, an attorney with the Institute for Free Speech, who represented Markley and Sampson during the oral arguments.
The SEEC ordered Markley and Sampson to pay $2,000 and $5,000 respectively. Rather than pay, the pair filed a lawsuit. They appealed after a trial court decision upheld the regulators’ fines and the state Supreme Court picked up the case.
Lawyers for the election regulators have argued that, despite participating in the Citizens Election Program, Markley and Sampson were not barred from criticizing Malloy and his policies. Rather, they were required to make those criticisms indirectly without naming the former governor or by sharing those expenses with his opponent’s campaign.
“We actually let you engage in that speech and stay in the program,” Assistant Attorney General Maura Murphy Osborne said Wednesday. “But on top of that leniency, we also allow you to speak outside the program.”
Osborne argued that the candidates agreed to some degree of speech restriction when they chose to participate in the public grant program.
“By participating in the CEP you’ve agreed — you have relinquished core First Amendment rights,” she said. “That’s the whole bargain in public financing… You give up your right to unlimited expenditures. You give up your right to unlimited base contributions. You give up several other rights.”
However, despite the lower court ruling in favor of SEEC, the justices seemed skeptical of the regulators’ arguments during Wednesday proceedings. They peppered Osborne with questions as she made her case.
At one point, Osborne argued that Markley and Sampson crossed a bright line when they clearly identified Malloy by name in the mailers.
Justice Joan Alexander interrupted.
“So it’s preferable to use some slang or derogatory term about a person than to use the actual name in a respectful way?” Alexander asked.
Osborne said she did not think regulators preferred derogatory terms, but said candidates were free to criticize “the Democratic leadership” rather than attack the governor directly. Osborne exhausted her allotted time and summarized her points after a buzzer signaled the end of her comments.
Justices seemed to have fewer questions for Miller, who characterized some of the restrictions imposed on CEP candidates as silly. He argued the state’s rules for the program created two tiers of speech.
“Those who are privately wealthy don’t need to worry about raising money, can go out and say whatever they want,” Miller said. “Those that are participating here have less speech. They’re all equal. Some are more equal.”
Justice Andrew McDonald, a former state senator and legal counsel to Malloy, interrupted.
“Their response would be, ‘Your clients bought into that two-tier program,’” McDonald said.
Miller argued that state statute was not written to create a two-tiered system.
“As far as ‘buying into it,’ the state is simply wrong when it says that it can curtail the content of political speech,” Miller said. “It has no business doing that under the First Amendment. Period.”
Throughout the arguments, Justice Raheem Mullins questioned what had prevented Markley and Sampson from making the political statements they sought to make using the avenues outlined by election regulators.
“It seems like there’s a way to do what you want to do even within the public financing program,” Mullins said. “You just have to do it the proper way and I read the state’s argument as you didn’t.”
Miller responded that the rules required Markley and Sampson to become “a squeegee man.”
“Say that again?” Mullins asked.
“A squeegee man? Do you remember back from Manhattan?” Miller said. “They’d have to go up to somebody’s car and scrub the window and say ‘Give me money.’ They have to say this, ‘I want to say Malloy tax increase, but I can’t do it on my own so I need to get somebody else to pay for it.’ Maybe somebody else doesn’t want to.”
Mullins pushed back.
“But you agreed to this, right?” Mullins said. “Aren’t there requirements for the program and you’re not forced to be in the program?”
Miller conceded that participation in the program was voluntary but said that clean elections programs generally focused on restrictions like contribution and spending limits.
“None of them go to how you convey your message,” he said. “Any time the government tries to tell somebody how to convey their political message, it is subject to strict scrutiny and it’s always been found to be a violation of the constitution.”
