Before I head out on vacation I wanted to copy/paste this lengthy e-mail Sen. Andrew McDonald, D-Stamford, sent out a few minutes ago in response to the news a federal judge has determined Connecticut’s new campaign finance law to be unconstitutional.
McDonald, an attorney, is co-chairman of the legislature’s Judiciary Committee.
Here’s the e-mail. The highlights are all McDonald’s. He ended up voting for the reforms despite the concerns outlined below:
Here is an excerpt of my Senate floor comments on the public financing bill from 2005, where I addressed some of the constitutional concerns with the legislation. I have emphasized portions of the excerpt. It reads:
I, you know, I know that is an issue that carries special meaning for many Members of this Chamber and beyond, and I have always said that with this, the legislation, we should have honored, honored, the committee process because there are flaws in this legislation.
And I feel they are critical and perhaps fatal flaws to this legislation, and I think many of those flaws could have been addressed in the committee process.
I’ll speak only for the committee I chair in Judiciary on the constitutional challenges that face this legislation ahead.
We are banning lobbyist contributions to legislative candidates and to constitutional officers. I don’t know that we have made the factual findings necessary to go to that length, but there is a perception, not necessarily documented, but there is a perception that lobbyists have an undue influence on the legislative process.
I’ve got to tell you. There are a lot of lobbyists in this building who don’t want to talk to me. They don’t want to talk to many of us on all sides of issues. I don’t think they’ll have an undue influence on the process, but we are going to ban them nonetheless.
My constitutional concern however, regards the scope of that ban because in some ways it is over-inclusive, and in other ways it is under-inclusive. What do I mean?
When you have an over-inclusive regulation that restricts free speech, you’ve got an issue that results in the most exacting scrutiny by the courts of our state and by the federal courts.
What am I talking about? Under the First Amendment to the U. S. Constitution, the right to make a political donation is considered to be an element of free speech.
It has both speech aspects, and it has associational aspects, and as a result, the U. S. Supreme Court has granted it the highest level of protection. The highest level of protection.
Now nobody has unlimited speech. That’s why we can have contribution limits. That’s why you can’t scream fire in a crowded theater. You can as a government place reasonable time, place, and manner restrictions on free speech.
What you cannot do is ban free speech is ban it. And yet, we’ve done that in this legislation. None of us are going to be the advocates for lobbyists, but what we should be is advocates for the First Amendment.
There are people in this country who say some of the darnedest things, and many of us find them inherent.
But I for one will protect to my last day their ability to say it, and it is our obligation with our own free speech rights to lend a contrary voice, and to counteract that speech with which we disagree.
But counteracting it is not the same as eliminating it.
Over-inclusiveness. We have in this bill, I’ll give you an example. There are lobbyists in this building who lobby on behalf of animals. Animals and animal rights.
And yet if you were a lobbyist for animal rights, you cannot make a $ 50 contribution to the Comptroller of the State of Connecticut. The Comptroller, of course, has nothing to do with animal rights.
And yet, that contribution is banned. There is no rational connection between the two, and courts will have a problem with that.
And yet in many other ways it’s under-inclusive. Under this legislation in the State of Connecticut, high powered lobbyists with contracting clients, contractor clients, can still trot on down to many local governments and make thousand dollar contributions to mayors, can raise money, can contribute money.
Those mayors may be administering hundreds and hundreds of millions of dollars of state money in school construction, and that’s fine. Those lobbyists can still contribute on a local level, but the animal rights lobbyists can’t contribute to the Comptroller.
You’ve got a constitutional problem. Don’t take it from me. This was exactly the issue we addressed in the working group
And we had some of the most learned professionals in the country come before us from the Brennan Center from Justice, from NYU School of Law, and they presented us with a formal testimony, written testimony, and extraordinary assistance in these issues.
And they said that the Supreme Court has stated that political contributions and expenditures have expression, expressive and associational components, and as a result they are granted great deference.
And they said, we believe that the provisions of the bill that completely ban contributions or expenditures by all categories of persons or political committees are not likely to survive such scrutiny.
They also said that under the reasoning outlined in this bill, a complete contribution ban would wholly prevent that expressive act, and it would have to be justified by a governmental purpose that could not be fulfilled by limits alone. Based on these principles, the contribution bans in the bills present serious constitutional concerns.
Like you, I read a lot of the editorial pages of newspapers in the State of Connecticut, and I have to tell you, there is a bandwagon effect a play here that is undeniable.
And I’m reminded by the fact that the Connecticut Newspapers Association was up here last session lobbying vigorously as a special interest group, I might add, lobbying vigorously for an amendment to our Freedom of Information Act.
Why? Because they said under their First Amendment rights they had an unfettered right to access autopsy records, including photographs.
They had an unfettered right to display on the pages of their newspaper if they chose, pictures of people on an examining table in the middle of an autopsy. That was their right, and it was for them to decide whether or not to do it under the First Amendment.
And yet at the same time, they don’t bat an eyelash to completely obliterate the First Amendment rights of an entire group of people because they say, they claim, and others do too, that lobbyists have an undue influence on the political process, and their First Amendment rights should be eliminated.
I just have to wonder, how would they respond, how would the editorial pages of Connecticut respond if we proposed legislation that said because newspapers might have an undue influence on the political process, they could not write editorials about campaigns one month prior to an election?
That would be an undue influence on the political process. Would that be considered by them to be a reasonable time, place, and manner restriction? Of course not. And we shouldn’t pass any such legislation, nor should we trample the rights of any person in this state.
I fear that there will come a time when the debate in this Chamber will be read by a judge in his or her chamber. And in the quiet repose of that setting, I hope a judge will know that this legislation was not approved by the Judiciary Committee of the General Assembly.
There are other constitutional problems as well. We have created a system, in this legislation, to deal with minor parties and petitioning candidates. I proposed in the working group a very simple solution. That for every dollar you raise as a candidate, you know what, actually, forgive me.
I meant to say one last thing about lobbyists. There are reasonable time, place, and manner restrictions that would withstand judicial scrutiny, and I proposed a limit, a limit in any election cycle of $ 2,500 for lobbyists.
If they chose, they could write one check to a gubernatorial candidate. If they chose, they could write several checks of $ 50 to any number of legislative candidates.
Choose as you will, but you can’t participate in that process any more than $ 2,500 in any election cycle. That would be clearly constitutional, and it would also clearly diminish any undue influence that exists for lobbyists.
But with respect to the petitioning candidates and the minor party candidates, I propose that we have a system whereby anybody who raises contributions in amounts of less than $ 100 be granted $ 3 for each $ 1 that they raise, up to a maximum as set forth in the bill.
And that would directly relate to how hard you worked among your constituents, among the residents of the State of Connecticut, and the amount of time you spend raising money from within your district would be directly proportional to the amount of money that the state would lend to your campaign.
That’s a great way to deal with all candidates, whether you’re major party, minor party, or petitioning. Everybody would be on an equal playing field. Not so in this legislation.
To become a minor party, I’m sorry, a petitioning candidate in this state, you have to obtain 1% of the signatures of the votes for that office in the last election, 1%. Oftentimes, it’s only a couple thousand signatures you need to get.
Yet, under this legislation, if you are a petitioning candidate for Governor, for Governor, and you want to be treated the same as a major party candidate, you have to go over hurdles that nobody else has to go over.
You have to go out and collect 200,000 signatures, 200,000 signatures to get the same amount of public money. Now, a major party candidate doesn’t have to do that. We clearly are treating petitioning party candidates quite differently.
We are also doing that same type of thing for minor party candidates. And even though you could be a minor party candidate with every right to be on a ballot, guess what?
Your only ability to get funding depends on whether or not somebody else ran for that office in the last election and got at least 10% of the votes cast.
Otherwise, you have no access to money. You have no access to participate in this process, and you are, therefore, at a distinct disadvantage.
That is not as clear cut, an unconstitutional proposition. It may very well be, but it is certainly unfair. If the goal of this legislation was to open up the process, I’m not certain we have achieved it.
So now I find myself in a very difficult position because I support the concept of publicly financing campaigns, but I’ve sworn to uphold a constitution, and those priorities are now in conflict.
I hope, as we go forward in this debate, my colleagues will tell me I’m wrong. Please do. Tell me how this is constitutional because I want to support campaign finance reform. I always have. I’ve always supported it. I am frightened by some of the aspects of this.
And I’ve heard people say, oh, Andrew, just vote for it. Let the courts figure it out. You know, under this legislation, a court may very well have to figure it out, but then the whole thing gets thrown out. And then what have we delivered? What have we delivered to the people of the State of Connecticut?
