Ass'n Of Conn. Lobbyists v. Garfield

616 F.3d 213

GREEN PARTY OF CONNECTICUT, S. Michael Derosa, Libertarian Party of Connecticut, Elizabeth Gallo, Joanne P. Philips, Roger C. Vann, Barry Williams, and Ann C. Robinson, Plaintiffs-Appellees,American Civil Liberties Union of Connecticut and Association of Connecticut Lobbyists, Plaintiffs,

v. Jeffrey GARFIELD, in his official capacity as Executive Director and General Counsel of the State Elections Enforcement Commission, and Richard Blumenthal, in his official capacity as Attorney General, Defendants-Appellants,Patricia Hendel, Robert N. Worgaftik, Jaclyn Bernstein, Rebecca M. Doty, Enid Johns Oresman, Dennis Riley, Michael Rion, Scott A. Storms, and Sister Sally J. Tolles, each in his or her official capacity as a Member or Official of the Office of State Ethics, Benjamin Bycel, in his official capacity as Executive Director of the Office of State Ethics, Defendants,Audrey Blondin, Common Cause of Connecticut, Connecticut Citizen Action Group, Kim Hynes, and Tom Sevigny, Intervenor-Defendants-Appellants. ^*

Docket Nos. 09-3760-cv(L), 09-3941-cv(CON).

United States Court of Appeals,Second Circuit.

Argued Jan. 13, 2010.

Decided July 13, 2010.

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Gregory T. D'Auria, Senior Appellate Counsel (Richard Blumenthal, Attorney General, Perry Zinn Rowthorn, Associate Attorney General, Maura Murphy Osborne, Assistant Attorney General, on the brief) Office of the Attorney General of the State of Connecticut, Hartford, CT, for defendants-appellants.

Ira M. Feinberg, Hogan & Hartson LLP, New York, N.Y. (Monica Y. Youn, Angela Migally, and Mimi Marziani, Brennan Center for Justice at the New York University School of Law, New York, NY, and David Dunn, Hogan & Hartson LLP, New York, NY, on the brief), for intervenor-defendants-appellants.

Mark J. Lopez, Lewis, Clifton & Nikolaidis, P.C., New York, N.Y. (Benjamin Sahl, American Civil Liberties Union Foundation, New York, NY, on the brief), for plaintiffs-appellees.

Benjamin Barr, Center for Competitive Politics, Alexandria, VA, for amicus curiae Center for Competitive Politics in support of plaintiffs-appellees.

William R. Maurer, Institute for Justice, Seattle, WA, for amici curiae Dean Martin, Robert Burns, Rick Murphy, Arizona Free Enterprise Club's Freedom Club PAC, and Arizona Taxpayers Action Committee in support of plaintiffs-appellees.

Before KEARSE, CABRANES, and HALL, Circuit Judges.

JOSÉ A. CABRANES, Circuit Judge:

This is the first of two opinions in which we consider a constitutional challenge to certain provisions of Connecticut's Campaign Finance Reform Act (CFRA).

The CFRA, enacted in 2005, represents a comprehensive effort by the Connecticut General Assembly to change the way that campaigns for state office in Connecticut are financed. We consider here a challenge to the Citizens Election Program (CEP), a part of the CFRA that provides public money to candidates running for state office. In our second opinion, which we file separately, we consider a constitutional challenge to restrictions imposed by the CFRA on campaign contributions (and the solicitation of campaign contributions) by state contractors, lobbyists, and their families. See Green Party of Conn. v. Garfield, 616 F.3d 189 (2d Cir.2010).

After a bench trial, the United States District Court for the District of Connecticut (Stefan R. Underhill, Judge ) ruled, in part, that the CEP violated the First Amendment and the Equal Protection Clause of the Fourteenth Amendment by invidiously discriminating against so-called minor political parties and their candidates. See Green Party of Conn. v. Garfield, 648 F.Supp.2d 298 (D.Conn.2009) (“ Green Party II ”). We reverse that part of the District Court's judgment and hold that the CEP does not, on this record, invidiously discriminate against minor parties and their candidates.

The District Court also ruled that certain discrete components of the CEP-its so-called “trigger provisions,” which include the CEP's “excess expenditure provision” and “independent expenditure provision”-violate the First Amendment by impermissibly restricting the right of candidates and other individuals and organizations to spend their own funds on campaign speech. We affirm that part of the District Court's judgment because we agree that the CEP's trigger provisions violate the First Amendment.

BACKGROUND

We first describe the history of the CEP. We then outline its provisions and briefly recount the procedural history of this action.

I. The History of the CEP

The CFRA-which includes the CEP-was passed in response to several corruption scandals in Connecticut. Id. at 306-07. The most widely publicized of the scandals involved Connecticut's former governor, John Rowland. In 2004, Rowland was accused of accepting over $100,000 worth of gifts and services from state contractors, including vacations, flights on a private jet, and renovations to his lake cottage. Rowland accepted the gifts, it was alleged, in exchange for assisting the contractors in securing lucrative state contracts. Rowland resigned amidst the allegations, and in 2005 pleaded guilty-along with two aides and several contractors-to federal charges in connection with the scandal. Rowland was fined and sentenced to a year and a day in federal prison. See id. at 307.

Sadly, the ignominy of public corruption was not limited to Rowland. As the District Court discussed in detail, the “Rowland scandal was but one of the many corruption scandals involving elected officials in state and local government that helped earn the state the nickname ‘Corrupticut.’ ” See id. at 307-08 (cataloging the scandals); see also id. at 307 n. 9 (discussing the decline of the reputation of Connecticut's state government).

It was in the wake of those scandals that Connecticut lawmakers resolved to enact “expansive campaign finance reforms.” Id. at 309. In the summer of 2005, Governor M. Jodi Rell established the Campaign Finance Reform Working Group (the “Working Group”), a collection of six state representatives and six state senators who were charged with drafting a new campaign finance reform law. After holding televised hearings for three months, the Working Group proposed an expansive bill, much of which would be incorporated into the final version of the CFRA. See id. at 309-10.

In the fall of 2005, Governor Rell called a special session of the General Assembly for the sole purpose of considering the Working Group's proposed bill. After a month of debate, the General Assembly passed the CFRA, and Governor Rell signed it into law. See id. at 300-11. As the District Court set forth in detail, several contemporaneous statements from General Assembly members, as well as Governor Rell, explain that the CFRA was passed “to combat actual and perceived corruption in state government.” Id. at 311.

Much of the CFRA went into effect on January 1, 2006, but “2008 marked the first election cycle with candidates participating in the CEP public financing scheme.” Id. at 330; see also Conn. Gen.Stat. § 9-702(a) (providing that the CEP becomes effective for the legislative elections in 2008 and for the statewide elections in 2010). Before it went into effect, the CEP was twice amended. See Green Party II, 648 F.Supp.2d at 311, 319-20.

II. The Provisions of the CEP

The CEP is a complicated statutory scheme, see Conn. Gen.Stat. § 9-702 et seq. , and the District Court took great care in explaining each of its provisions. See Green Party II, 648 F.Supp.2d. at 311-20. We describe only those provisions of the CEP that are relevant to our decision here.

A. Qualification Criteria

Candidates qualify for CEP funding by satisfying one of two types of qualifying criteria-one type for “major party” candidates and one type (with two subtypes) for “minor party” candidates. Under what we will refer to as the CEP's “statewide qualifying criteria,” candidates qualify for CEP funding if they are running on the ticket of a major party. See Conn. Gen.Stat. § 9-702(a). A “major party” is defined by the CEP as a party that either (a) had a candidate for governor in the last election who received at least 20% of the vote, or (b) has as members at least 20% of the registered voters in the state. See id. § 9-372(5). There are, and have been for some time, only two parties that have achieved “major party” status in Connecticut: the Republican Party and the Democratic Party. Green Party II, 648 F.Supp.2d at 311.

For candidates who are not running on the ticket of a major party-that is, for candidates who are running on the ticket of a minor party or who have no party affiliation-there are alternative ways of qualifying for CEP funding. Under what we will refer to as the CEP's “single-election qualifying criteria,” a minor-party candidate can qualify for funding in a specific race if a member of his or her party achieved a certain threshold percentage of the vote in the same race in the last election. See Conn. Gen.Stat. § 9-705(c)(1), (g)(1). A minor-party candidate can qualify for a full grant of CEP funding if a member of his or her party received 20% of the vote in the same race in the last election; a candidate can qualify for two-thirds of the full amount if a member of his or her party received 15% of the vote in the same race in the last election; and a candidate can qualify for one-third of the full amount if a member of his or her party received 10% of the vote in the same race in the last election. See id.

Under what we will refer to as the “petitioning criteria,” minor-party candidates can also qualify for CEP funding by collecting a certain number of signatures of those eligible to vote in the race in which they are running. A minor-party candidate can receive a full CEP grant if he or she collects a number of eligible signatures equal to 20% of the votes cast in the same race in the last election; the candidate can receive two-thirds of the...