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September 14, 2023

Court explores whether CT’s campaign law violates free speech

MARK PAZNIOKAS / CTMIRROR.ORG The plaintiffs: Joe Markley, left, and Rob Sampson at the Supreme Court on Wednesday.

The publicly funded campaigns of two conservative Republicans in overlapping districts, Sen. Joe Markley of Southington and Rep. Rob Sampson of Wolcott, jointly trumpeted their disdain of Gov. Dannel P. Malloy’s fiscal policies in 2014.

“Rob and Joe have consistently fought Governor Malloy’s reckless spending and voted against his budget, which resulted in nearly $4 billion in new and increased taxes for Connecticut residents,” they said in one shared mailer, each paying half the $941.48 cost.

That campaign expenditure and similar ones ignited a free-speech fight that reached the Connecticut Supreme Court in oral arguments Wednesday over whether restrictions on using public campaign funds conflicts with the First Amendment.

At issue was whether Markley and Sampson’s criticism of Malloy, who was an unpopular governor seeking reelection in 2014, was furthering their own campaigns or boosting the governor’s Republican challenger, Tom Foley.

Their lawyer, Charles Miller of the Virginia-based Institute for Free Speech, told the justices that the duo clearly was promoting their interests, not Foley’s. But it didn’t matter, Miller added, even if the intent was otherwise.

“The state cannot require and impose a direct restriction on First Amendment rights of political speech,” said Miller, a former appellate judge in Ohio. 

Markley and Sampson were among the 27 Republicans targeted by Democratic legislative candidates for using public grants obtained under the voluntary Citizens Election Program to attack Malloy in 2014.

The State Elections Enforcement Commission issued an advisory opinion shortly before the election stating that the use of the public grants was strictly to promote the recipients, not another candidate in another race.

The commission obtained consent decrees from 25 of the 27 Republicans that essentially extracted promises to refrain from similar ads in the future. Markley and Sampson refused.

“We’re here because we’re testing this law,” Sampson said after the arguments Wednesday. “I mean, the fact of the matter is we had the chance to walk away, like the rest of our colleagues did and say, ‘Okay, we won’t do it again.’ But to me, that’s not good enough.”

The commission eventually imposed fines of $2,000 on Markley and $5,000 on Sampson — $1,000 for each of the mailings that attacked Malloy. They lost an initial appeal of the commission’s decision to Superior Court.

Sampson succeeded Markley in the Senate, winning the seat after his friend and ally did not seek reelection in 2018.

Maura Murphy-Osborne, the assistant attorney general who defended the state’s position Wednesday, said the state had a legitimate interest in ensuring that the public funds were not used in violation of the Citizens Election Program. In return for the public funds, participants agree to spending limits and other restrictions.

“These plaintiffs knowingly and voluntarily agreed to abide by the conditions of a government program when they accepted money, taxpayer money, to promote their own personal political speech,” she said.

She had spoken for 30 seconds when Justice Andrew McDonald interrupted with the first of the many questions that came from justices who seemed skeptical about elements of the state’s case and the practicalities of the commission’s policy.

McDonald, a former Democratic state senator and the only member of the court with firsthand experience running for office, asked if he understood correctly that Markley and Sampson applied for the public funds long before the advisory opinion warning against invoking the names of other candidates in advertising?

Yes, she replied.

“So did they, by signing that form at the beginning of their candidacies, is it the commission’s position that they also agreed to any new and different interpretation of the statutory or regulatory scheme that may post-date their application?” McDonald asked.

“No, that’s not our position,” Murphy-Osborne said. But she added that the October 2014 advisory opinion was consistent with existing regulations.

McDonald challenged her on seeming inconsistencies in the state’s rules: It appeared to him that the palm cards handed out to voters could mention other candidates, but the oversized post cards mailed to them could not.

“I’m struggling with what the rationale would be to say that you can criticize the governor and his policies if you can’t effectively distribute the message widely. ‘If you have to go door to door to do it, that’s fine. But you can’t do a mass mailing?’ And I don’t understand that distinction,” McDonald said.

McDonald, who was Malloy’s general counsel, and other justices questioned why publicly financed candidates had to be so careful. To Miller, he wondered if the elections commission would be fine with euphemisms that made the same point.

“What if your clients had just said, ‘We oppose the crazy policies of the current administration?’”

Miller nodded and replied that his clients could have made the same point by striking Malloy’s name and referring instead to the governor’s policies or Democratic policies, but there was no guarantee such an approach would pass muster.

“You get to the point where it’s silly, right?” Miller said, asking the justices to imagine an ad attacking the policies of “He Who Should Not Be Named.” 

Miller said a common tool in political advertising is to use a prominent figure as a stand in for showing disdain or support of issues.

“When someone says, ‘I’m a Sanders Democrat,’ that’s an effective way of communicating,” Miller said. “And it’s better arguably than saying, ‘I’m a Social Democrat.’ Saying that ‘I am Trumpian,’ if you’re on that side, could be as effective or more effective as saying, ‘I’m MAGA.’ And likewise, running for or against Obamacare is an effective way of communicating your positions on issues.”

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