Green Party of Connecticut v. Garfield

Decision Date19 December 2008
Docket NumberCivil Action No. 3:06cv1030 (SRU).
Citation590 F.Supp.2d 288
CourtU.S. District Court — District of Connecticut
PartiesGREEN PARTY OF CONNECTICUT, S. Michael Derosa, Libertarian Party of Connecticut, Elizabeth Gallo, Joanne P. Phillips, American Civil Liberties Union of Connecticut, Roger C. Vann, Association of Connecticut Lobbyists, Barry Williams, and Ann C. Robinson, Plaintiffs, v. Jeffrey GARFIELD, in his official capacity as Executive Director and General Counsel of the State Elections Enforcement Commission; Richard Blumenthal, in his official capacity as Attorney General of the State of Connecticut; Patricia Hendel, Robert N. Worgaftik, Jaclyn Bernstein, Rebecca Doty, Enid Johns Oresman, Dennis Riley, Michael Rion, Scott A. Storms, Sister Sally J. Tolles, in their official capacities as Officials and Members of the Office of State Ethics; and Benjamin Bycel, in his official capacity as Executive Director of the Office of State Ethics, Defendants, Audrey Blondin, Common Cause of Connecticut, Connecticut Citizens Action Group, Kim Hynes, and Tom Sevigny, Intervenor-Defendants.

David J. McGuire, American Civil Liberties Union, Hartford, CT, Kevin James, Mark J. Lopez, Lewis, Clifton & Nikolaidis, Mark H. Ladov, American Civil Liberties Union Foundation, New York, NY, R. Bartley Halloran, Garrett S. Flynn, Law Office of R. Bartley Halloran, Farmington, CT, for Plaintiffs.

Maura Murphy-Osborne, Perry A. Zinn Rowthorn, Attorney General's Office, Hartford, CT, for Defendants.


STEFAN R. UNDERHILL, District Judge.

The instant motions for summary judgment present another chapter in the litigation over Connecticut's recently-enacted campaign finance reform law. In those motions, the government and intervenordefendants (collectively "the government" or "the state") seek summary judgment on the plaintiffs' claims that the campaign contribution and solicitation bans for certain lobbyists, state contractors, and their immediate family members violate their First Amendment rights of speech and association.1 The plaintiffs have filed two cross-motions for summary judgment, arguing that those contribution and solicitation prohibitions depart from clearly established Supreme Court precedent and have no support in fact or law.

Although the challenged law imposes an outright prohibition on plaintiffs' ability to make and solicit campaign contributions for candidates seeking state elected office, because the burden of the statute falls on marginal speech and associational rights lying closer to the edge than the core of First Amendment protections, I conclude that the Act's contribution and solicitation bans are subject to less exacting "closely drawn" scrutiny. In light of Connecticut's recent history of corruption scandals involving high-ranking state politicians, I conclude that the legislature had a constitutional, sufficiently important interest in combating actual and perceived corruption by eliminating contributions from individuals with the means and motive to exercise undue influence over elected officials. Because the law does not materially undermine the plaintiffs' core First Amendment rights to engage in meaningful expressions of political belief and support or to freely associate with candidates and political parties, the bans are narrowly tailored to pass constitutional muster. Therefore, because the challenged provisions are closely drawn to the state's sufficiently important state interest of preventing actual and perceived corruption, the government's motion for summary judgment is granted and the plaintiffs' cross-motions for summary judgment are denied.

I. Background2

As noted in previous decisions in this case, several Connecticut politicians have been implicated in major corruption scandals, or pled guilty to criminal charges related to public corruption. It cannot be seriously disputed that the scandals have substantially undermined public confidence in Connecticut state government. Partly in response to those scandals, the Connecticut General Assembly passed the Campaign Finance Reform Act ("CFRA" or the "Act").

A. The Bans

To restore the public's confidence in Connecticut's elected officials, the General Assembly included two provisions in the CFRA that are the subject of the instant motions. First, the Act principally bans communicator lobbyists3 (hereinafter, "lobbyists"), and their immediate family members,4 from contributing to, and soliciting donations on behalf of, candidates for state office.5 Conn. Gen.Stat. § 9-610(g)-(h). Second, the Act bans principals of contractors6 or prospective contractors 7

with state contracts8 (hereinafter, "state contractors") from contributing to, or soliciting contributions on behalf of, candidates for state office.9 Conn. Gen. Stat. § 9-612(g)(2).

The definition of "solicitation" is central to the issues presented here. The Act defines "solicit" as:

(A) requesting that a contribution be made, (B) participating in any fund-raising activities for a candidate committee, exploratory committee, political committee or party committee, including, but not limited to, forwarding tickets to potential contributors, receiving contributions for transmission to any such committee or bundling contributions, (C) serving as chairperson, treasurer or deputy treasurer of any such committee, or (D) establishing a political committee for the sole purpose of soliciting or receiving contributions for any committee.

Conn. Gen.Stat. § 9-601(26). Notably, "solicit" does not include: "(i) making a contribution that is otherwise permitted under this chapter, (ii) informing any person of a position taken by a candidate for public office or a public official, (iii) notifying the person of any activities of, or contact information for, any candidate for public office, or (iv) serving as a member in any party committee or as an officer of such committee that is not otherwise prohibited in this subdivision." Id.

On November 15, 2006, the State Elections Enforcement Commission ("SEEC")the state agency charged with administering and enforcing the CFRA— issued a declaratory ruling interpreting the scope and terms of the contribution and solicitation bans.10 SEEC Declaratory Ruling 2006-1, Lobbyist Contribution and Solicitation Ban, Garfield Decl. Ex. 1 at 1 ("SEEC Ruling 2006-1"). In that ruling, the SEEC interpreted the phrase "requesting that a contribution be made" require that either: "(1) an express request that a contribution be made; or (2) a request is made such that a reasonably prudent person would not construe it as anything other than a request that a contribution be made, to a covered candidate or committee...." Id. at 3. Communicator lobbyists may also not participate in any fundraising activities, which include attending fundraisers, forwarding tickets for fundraisers, receiving contributions, or bundling contributions.11 Id. at 4. "Bundling" is "the practice of collecting several contributions for forwarding or delivery to a campaign, generally so as to receive credit or good will for their collection." Id. In addition, communicator lobbyists may not hold certain positions within a campaign, such as chairperson, campaign treasurer, deputy treasurer, or other committee officer. Id.

The solicitation ban, however, is as notable for the conduct it does not prohibit as for the conduct it does. SEEC Ruling 2006-1 explains that communicator lobbyists may still "inform their clients (or anyone else, for that matter) that a certain legislator or public official has been helpful, or not, on an issue that they are concerned about." Id. at 5. Moreover, "[a] lobbyist subject to the ban can provide anyone with a candidate's website, phone number or other contact information," and "could even inform someone that the candidate was having a fundraising event, but would have to avoid suggesting that they should attend or contribute." Id. The ruling provides further that the SEEC "believes it is clearly permissible conduct for a communicator lobbyist to orally inform a person of a fundraising event being held on behalf of a candidate's campaign. An express request that the person should attend or contribute, or an implicit request capable of no other construction by an ordinarily reasonably prudent person, would constitute a prohibited solicitation under the ban." Id.

SEEC Ruling 2006-1 listed the following examples of activities that are unaffected by the contribution and solicitation bans:

1) Volunteer for a covered candidate's political campaign (except as chairperson, treasurer, deputy treasurer or other officer, or in any fundraising capacity);

2) Put a sign on his or her lawn;

3) Make get out the vote calls;

4) Express support for a candidate or his or her views;

5) Advise someone whether a candidate is likely to be elected;

6) Communicate his or her evaluations of a legislator or candidate to his or her clients or anyone else;

7) Contribute to a political committee that is not established or controlled by one of the covered candidates (but could not contribute to one committee with the direction to pass through to another, otherwise known as laundering, earmarking or giving in the name of another);

8) Contribute to candidate committees for candidates for Judge of Probate, municipal office and referenda committees;

9) Make independent expenditures on behalf of a covered candidate (no coordination, as defined in Conn. Gen.Stat. § 9-333a(19) [replaced by Conn. Gen. Stat. § 9-601(19) ]);

10) Provide advice to a candidate for public office;

11) Run for office;

12) Be the spouse or dependent child of someone running for office;

13) Attend campaign events for covered candidates that do not involve fundraising, such as debates or meet and greet events where fundraising is not involved;

14) Host an event for a...

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