July 13, 2010

Second Circuit Panel Issues Two Important Decisions on Connecticut Campaign Finance Law

In a major campaign finance decision with important national implications, a Second Circuit panel in Green Party of Connecticut v. Garfield agreed with a federal district court that the "trigger provision" of Connecticut's campaign finance law (giving additional funding when a participating candidate faces a self-financed opponent or large independent spending against the candidate) is unconstitutional. This decision is at odds with the Ninth Circuit decision in the McComish v. Bennett case, and the split makes it even more likely that the Supreme Court will agree to hear the McComish case. (The Court already issued a stay in the McComish case pending a cert. petition being filed). The Second Circuit held the issue was squarely addressed by the Supreme Court's earlier opinion in FEC v. DAvis. The Ninth Circuit had found the Davis case easily distinguishable.

In addition, the Second Circuit panel held that the public funding law did not discriminate against minor parties in making public funding benefits much more easily available to major party candidates. Although the panel spent much more time on the minor party issue than on the trigger provision issue, it is the latter that will draw more national attention.

The panel also upheld Connecticut's broad ban on contributions by certain government contractors and potential contractors. It held that the ban on contributions by lobbyists, however, was unconstitutional. It further held that a ban on all solicitation of contributions by contractors and lobbyists were unconstitutional, but it suggested a more narrowly tailored anti-bundling law could pass constitutional muster. (I am currently writing about limits on lobbyist campaign finance activities and will have more to say on this case eventually.)

Judge Kearse dissented on the minor party issue only.

For procedural reasons, the appeals are in two parts, Part 1 on minor parties and the trigger provision and Part 2 on contractor and lobbyist campaign finance limits.

Richard Winger is strongly critical of the minor party aspect of the decision. He predicts a request for rehearing en banc or a cert petition to the Supreme Court. I would be surprised if the Supreme Court agreed to review that aspect of the case, but the dissent by Judge Kearse on this issue makes it more likely than otherwise that either the Court would hear this aspect of the case or it would be taken en banc. If the Court agrees to hear the McComish case early next term (as I expect), and there is an appeal on the trigger provision question pending before the Supreme Court, I would expect the case to be held for the decision in McComish.

Posted by Rick Hasen at July 13, 2010 09:55 AM