The Connecticut Supreme Court concluded in an opinion Monday that the State Elections Enforcement Commission’s restrictions on advertising in publicly financed campaigns were overly broad and violated the free speech rights of two conservative Republican state lawmakers in 2014.
At issue was whether criticism of former Gov. Dannel P. Malloy’s fiscal policies by former Sen. Joe Markley of Southington and then-Rep. Rob Sampson of Wolcott in campaign materials was intended to further their own candidacies or improperly use their public grants to undermine the Democratic governor or help his Republican challenger, Tom Foley.
In a unanimous opinion by Chief Justice Richard A. Robinson, the court ruled that a lower court erred in upholding the elections commission’s imposition of fines against Markley and Sampson, concluding that a blanket ban on mentioning candidates in other races violated their free-speech rights.
The decision opens the door to candidates for the General Assembly to use Donald J. Trump or Joe Biden as foils in their campaign advertising this year.
The court sided with the two Republicans, who insisted their criticism of Malloy was an effective way to illustrate their principles and positions and not an illicit scheme to use their funding to assist Foley.
“[W]e conclude that none of the communications at issue in this appeal could reasonably be construed as anything more than a rhetorical device intended to communicate the merits of the plaintiffs’ candidacies as bulwarks against the policies endorsed by Gov. Malloy and the Democratic Party,” Robinson wrote.
While the court found that the commission erred in fining Markley and Sampson, it left open the possibility it could have penalized them if their intent had been to influence the governor’s race and not their own.
“You still can’t use money raised in one race for another race,” said Mario Cerame, one of the lawyers representing Markley and Sampson. “But sometimes a candidate is functionally the same as an issue. Opposing the person who voted for Obamacare because they supported it is not necessarily the same as opposing Obama.”
The court gave no guidance for precisely where the commission should draw the line.
“There is no way to get around having close calls,” Markley said in an interview Monday. “Where they drew it was way off in our case.”
Neither the attorney general’s office nor the State Elections Enforcement Commission had substantive comment on the decision, saying they were reviewing the decision.
Sampson could not immediately be reached for comment.
The vast majority of candidates for General Assembly participate in Connecticut’s voluntary Citizens Election Program, which provides financial grants to qualifying candidates who agree to abide by strict limits on fundraising and spending. It bans donations by state contractors and restricts those from lobbyists.
Markley and Sampson were among the 27 Republicans targeted in complaints by Democratic legislative candidates for using public grants obtained under the voluntary Citizens Election Program to attack Malloy in 2014, when the Democratic governor won reelection in a rematch with his 2010 opponent.
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.
“Rob and Joe have consistently fought Gov. Malloy’s reckless spending and voted against his budget, which resulted in nearly $4 billion in new and increased taxes for Connecticut residents,” Sampson and Markley said in one shared mailer deemed violative by the commission.
The commission later 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, and their cause was taken up by Virginia-based Institute for Free Speech.
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 the Superior Court.
On Monday, Markley said he doubted Democrats would bemoan the Supreme Court’s decision: Just as he and Sampson used an unpopular Democratic governor to score points in 2014, he expected Democratic legislative candidates to employ Trump, who lost Connecticut by 20 percentage points in 2020, in a similar vein.
“The shoe is on the other foot now,” Markley said.
In oral arguments last fall, the justices were openly skeptical of the commission’s actions against Markley and Sampson and the defense offered by the office of Attorney General William Tong.
One of the justices aggressive in his questions was Andrew McDonald, a former state senator who had been general counsel to Malloy. He questioned why criticism of his old boss’s policies was not a matter of free speech — a shorthand for the Republicans to brand themselves to voters.
The state had argued that the voluntary nature of the Citizens Election Program allowed more restrictive rules to accomplish a legitimate public purpose of ensuring the public grants were used for their intended purpose.
The court acknowledged that use of public funds made the case one of first impression.
“This analysis is complicated by the fact that neither the parties’ briefs nor our independent research has revealed any case law considering whether expenditure restrictions that govern the specific content of a publicly financed candidate’s campaign messaging pass muster under the First Amendment,” the court wrote.
The voluntary nature of the program, however, was not a license to a broad ban on certain speech, the court said. Because the regulations “that restrict political expression operate to burden candidates’ core First Amendment speech, we apply strict scrutiny and look beyond voluntariness to determine whether they are ‘narrowly tailored.’”
“As the parties discussed in their briefs and at oral argument before this court, it is essential for candidates to be able to communicate where they stand on issues in relation to other candidates and public officials,” the court wrote. “The invocation by name of prominent political figures—some of whom may happen to be candidates elsewhere on the ballot in a particular election—will sometimes provide the most meaningful and effective way for a candidate to explain to voters their political ideals, policy commitments, and the values that they hope to bring to the office that they seek.”
The court essentially gave its blessing to anyone who invokes the names of Biden or Trump: “Being able to categorize oneself as, for example, an opponent of the ‘Biden Democrats’ or the ‘Trump Republicans’ is of unquestionable rhetorical value to a candidate seeking office in polarized times.”