Bashing governor in publicly funded campaign ads is OK in Connecticut legislative races, court rules

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Connecticut's Supreme Court on Monday ruled that state elections officials violated the constitutional free speech rights of two Republicans running for the state legislature when it fined them thousands of dollars for criticizing the Democratic governor in ads paid for by their publicly funded campaigns in 2014.

In a 5-0 decision, the justices overturned the $5,000 civil fine against now-Sen. Rob Sampson and the $2,000 penalty against former Sen. Joe Markley imposed by the State Elections Enforcement Commission — a ruling their lawyer said could have influence in other states.

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The commission had determined that Sampson and Markley violated the rules of the state's Citizens' Election Program, which provides public funds to campaigns for statewide office and the legislature, when they sent out campaign materials touting how they would fight what they called the bad policies of then-Gov. Dannel Malloy.

Joe Markley speaks after being nominated by the Republican Party as their chosen candidate for lieutenant governor at the State Republican Convention, May 12, 2018, in Mashantucket, Conn. Connecticut's Supreme Court on Monday, May 20, 2024, ruled that state elections officials violated the constitutional free speech rights of two Republicans running for the state Legislature, including Markley, when it fined them thousands of dollars for criticizing the Democratic governor in ads paid for by their publicly funded campaigns in 2014.  (AP Photo/Jessica Hill)

While the program bars a candidate from spending their public funds on the campaigns of others not in their race, the Supreme Court said the commission went too far when it interpreted the law to mean Sampson and Markley couldn't criticize Malloy, who was running for reelection.

"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 Governor Malloy and the Democratic Party," Chief Justice Richard Robinson wrote in the opinion.

Robinson added the commission "imposed an unconstitutional condition in violation of the first amendment to the extent that it penalized the mention of Governor Malloy’s name in a manner that was not the functional equivalent of speech squarely directed at his reelection campaign."

The ruling cited several decisions by the U.S. Supreme Court and other courts on what limits can be placed on free speech in publicly funded campaigns. Thirteen states provide some form of public funding to candidates for state offices, according to the National Conference of State Legislatures.

Charles "Chip" Miller, a senior attorney at the Institute for Free Speech who represented to the two lawmakers, said the Connecticut case appears to be the first of its kind and could have ramifications in other states if they seek outside guidance on the issue.

"To the extent that you can tie someone to an opposing candidate, you know, I think is extremely relevant now," he said.

"You can talk about somebody being a Trump supporter, or a Biden supporter, be it yourself or someone else. Someone can run and they could say, ‘Hey, I’m a Sanders Democrat,’ and that means something. Right?" he said, referring to U.S. Sen. Bernie Sanders, an independent from Vermont who caucuses with the Democrats.

Other states that provide public funding for state campaigns, such as Arizona and New York, limit use of the money to the candidate's own campaign. New York has specific language that bans spending that money to support another candidate.

The commission was reviewing the decision and consulting with the Attorney General's Office to determine what to do next, said Michael J. Brandi, executive director and general counsel at Connecticut’s Elections Enforcement Commission.

"As the court wrote, it's an issue of first impression and a notoriously tricky application of the law," he said in a statement. "Connecticut is in the vanguard of campaign finance reform, so that’s to be expected."

The state attorney general's office, which represented the commission in the case, said it was reviewing the court ruling before deciding its next steps.

Markley, of Southington, won reelection as a senator in 2014 and left the legislature in 2019 after losing his bid for lieutenant governor. He said the commission's interpretation of the law was "ludicrous" and he had believed it would be overturned by the courts.

"I think that what they were trying to do here in Connecticut was sufficiently outrageous that I doubt that such actions have even been contemplated in other states, because who would push for bans on what I think is such reasonable political communication?" he said.

Sampson, from Wolcott, won reelection to the House in 2014 and won the Senate seat vacated by Markley four years later. He said he felt "vindicated" by the court's unanimous decision and pleased that future candidates can now exercise their free speech rights.

"In our case, it should have been perfectly reasonable for me to inform my constituents — and voters — that I did not support the policies of the former governor," Sampson said in a statement posted on social media.

During the 2014 campaign, Sampson and Markley sent out postcards and flyers touting their fiscally conservative positions and saying they were key players in the legislature in fighting what they called Malloy's "reckless" tax and spending policies. That year, Markley received about $57,000 in public funds for his campaign and Sampson got about $28,000.

Sampson's Democratic opponent that year, John Mazurek, filed a complaint with the commission over the two Republicans' campaign materials and their references to Malloy.

In 2018, the commission found that Sampson and Markley had violated the public campaign funding law by attacking Malloy, saying they were essentially spending the public funds on another 2014 campaign — Republican Tom Foley's challenge against Malloy, who won reelection and later did not seek another term in 2018.

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Sampson and Markley appealed to Superior Court, which upheld the commission's decision in 2022. Judge Joseph Shortall said that Sampson and Markley did not prove that their constitutional rights were violated by the commission, and that they had voluntarily agreed to accept public funding for their campaigns and the conditions that came along with the money.

They next appealed to the Supreme Court, which overturned the lower court on Monday.