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The DGA Should Not Be Attacking Connecticut's Fair Elections Law

Seth Endo

The Democratic Governors Association (DGA) recently filed a federal complaint challenging the constitutionality of several Connecticut statutes that regulate campaign expenditures made without the consent, coordination, or consultation of candidates for state office (“independent expenditures”).

But, as Common Cause has noted, the anti-coordination rules protect the “integrity of Connecticut’s elections generally[] and publicly-financed elections in particular.” Illustrating this concern, if the DGA’s suit is successful, millionaire Republican candidate Tom Foley might “be able to run under Connecticut’s public financing program and then give millions of his own money to two independent expenditure groups, one of them run by his own treasurer, and those groups could then spend millions on Foley’s behalf.”

The DGA, however, appears blinded by a short-sighted view of its self-interest. The DGA plans on making expenditures to expressly advocate for and against the Connecticut gubernatorial candidates and to communicate its positions on issues of public concern in the state with references to state officeholders and candidates.

But they worry that these activities might not be considered independent expenditures under Connecticut’s campaign finance laws because the incumbent governor, Dan Malloy, helps raise funds for the organization. At the end of this month, Governor Malloy is scheduled to host policy conference in Greenwich, which is expected to generate a significant amount of revenue for the DGA. And Governor Malloy is now running for reelection. Prompted by these concerns, the DGA has asked a federal district court to find that the Constitution prohibits Connecticut from using this fact as a basis for presuming or finding that the DGA’s planned expenditures were made with Governor Malloy’s consent, coordination, or consultation.

In addition to the problematic policy outcomes that would follow a ruling in its favor, the DGA employs tenuous legal arguments. For example, the DGA’s reliance on Colorado Republican Federal Campaign Committee v. Federal Election Commission, 518 U.S. 604 (1996), is misplaced. The campaign finance laws there involved a conclusive presumption. The statutory presumption here is merely a rebuttable one. The Second Circuit upheld a Vermont statute that created a similar presumption regarding independent expenditures based on this distinction, noting that the Vermont presumption was easy to rebut. This is particularly true of the Connecticut presumption that, by law, is considered effectively rebutted by the establishment of a firewall policy—a policy that the DGA alleges it has.

To conclude, the DGA’s challenge to Connecticut’s anti-coordination laws would permit the wealthy to funnel money to a candidate who fundraises for ostensibly independent expenditure groups that then pour the money into advocacy efforts to elect the candidate. And such an outcome would undermine the state’s Citizen Election Fund, which is designed to make candidates more responsive to the community as a whole by letting: candidates to compete without reliance on special interest money; officials to make decisions free of the influence of donations; and citizens meaningfully participate in the political process. 

Recognizing the importance of these goals, the Clean Election Fund is supported by almost eight out of ten Connecticut residents. Likewise, the DGA should be working to strengthen and defend campaign finance laws that reduce the influence of money in politics, not attacking them.