JOE MARKLEY et al. v. STATE ELECTIONS ENFORCEMENT COMMISSION, SC 20726

Judicial District of New Britain

 

       Elections; Campaign Financing; Free Speech; Whether Statutes That Provide Public Campaign Funds to Election Candidates on Condition That Those Funds Not be Used to Promote Another Candidate's Election Violate First Amendment.  The plaintiffs, Joe Markley and Rob Sampson, were candidates for elections to the Connecticut General Assembly in 2014, and they applied for and accepted public funding under the Citizens' Election Program (program), General Statutes § 9-700 et seq.  The receipt of such funds was subject to restrictions set forth in (1) General Statutes § 9-616 (a) (5), which prohibits contributions by a candidate committee "to, or for the benefit of, . . . another candidate committee," and (2) regulations adopted by the defendant commission (commission) pursuant to General Statutes § 9-706 (e) regarding "permissible expenditures under subsection (g) of section 9-607 for qualified candidate committees receiving grants" under the program.  These regulations (1) require that all funds in the depository account of a candidate committee "shall be used only for" the candidate's election to the office and (2) forbid candidates from using funds in the depository account for "contributions, loans or expenditures to or for the benefit of another candidate."  During the course of their election campaigns, the plaintiffs published campaign literature that attacked then-Governor Dannel Malloy's record and policies.  In 2018, the commission found that the publication of these communications "opposed" Governor Malloy and constituted "expenditures" in a race other than the candidates' own races and, therefore, violated § 9-616 (a) (5) and the applicable regulations.  The commission ordered that Markley pay $2000 and Sampson pay $5000 in civil penalties.  The plaintiffs appealed to the trial court, claiming that the statutes and regulations, which were the basis for the commission's decision, violate the first amendment to the federal constitution by  restricting a candidate's ability to speak about other, non-opposing candidates.  Relying on Buckley v. Valeo, 424 U.S. 1 (1976), the court ruled that the voluntary decision by the plaintiffs to accept public funds to finance their campaigns for reelection, along with the condition that those funds not be used to promote another candidate's election, did not burden the plaintiffs' first amendment rights.  The court accordingly affirmed the commission's decision.  The plaintiffs appealed to the Appellate Court, and the Supreme Court transferred the appeal to itself.  On appeal, the plaintiffs claim that Connecticut's restrictions on the mere mention of a non-opposing candidate's name in campaign materials violate the first amendment by prohibiting protected political speech.  Specifically, they contend that the statutes in question are subject to strict scrutiny because they burden core political speech, and they argue that the statutes fail strict scrutiny because Connecticut has failed to demonstrate that the law serves the acceptable compelling interest of preventing corruption or the appearance thereof.  They also argue that Connecticut's effort to condition the plaintiffs' participation in the program on their surrender of their right to control their campaign message, specifically, to use language that "attacks" a non-opposing candidate, is unconstitutional because it places an impermissible burden on candidate speech.