Thursday, Judge Stefan R. Underhill, a U.S. District Court Judge in Bridgeport, CT issued a 138 page ruling on the constitutionality of the Connecticut Citizens' Election Program in response to a suit brought by "a group of self-described 'minor' parties and minor party candidates for statewide and state legislative office". The plaintiffs alleged that placed "an unconstitutional, discriminatory burden on their fundamental, First Amendment-protected right to political opportunity by enhancing the relative strength of major party candidates who can more easily qualify for public funding."

The State defended "the CEP on the ground that it does not reduce minor party candidates’ absolute political strength below what they would have otherwise been able to achieve in the absence of the CEP." In addition, the State contended "that any burden the CEP may impose is justified by compelling state interests in protecting the public fisc against funding hopeless candidacies, minimizing incentives that would promote factionalism and splintered parties, and encouraging high participation rates in the CEP by viable candidates."

Judge Underhill started his ruling by acknowledging the "public outcry over several high-profile corruption scandals involving state elected officials, including former Governor John Rowland." He went on to praise the program saying

Good motives underlie the enactment of the CEP, namely, to combat actual and perceived corruption arising out of large contributions from private sources and to encourage candidates to spend more time engaged with voters and each other on the pertinent issues, rather than spending time fundraising. Indeed, the state should be praised for its groundbreaking efforts to increase the public’s confidence in state lawmakers and to promote the integrity of the electoral system as a whole. Spurred on by a regrettable legacy of corruption that has pervaded all levels of elected office in recent decades, Connecticut is now commendably at the forefront of a nationwide movement to increase transparency in the political process.

He went on to note that "the state must remain mindful that it is operating in the arena of core, fundamental constitutional rights that demand narrow and carefully tailored regulations." He goes on to say that in his opinion the regulations were not sufficiently narrowly and carefully tailored to protect the constitutional rights of minor party candidates and ruled that "that the CEP imposes an unconstitutional, discriminatory burden on minor party candidates’ First Amendment-protected right to political opportunity by enhancing participating major party candidates’ relative strength beyond their past ability to raise contributions and campaign, without imposing any countervailing disadvantage to participating in the public funding scheme" and "that the operation and enforcement of the CEP must be permanently enjoined."

He starts off by noting that "the CEP provides public funding to participating candidates at windfall levels, well beyond historic expenditure levels in most races, thus creating merely illusory expenditure 'limits' for participating candidates. The CEP grant levels are also well beyond what most candidates have previously been able to raise from private fundraising sources. Accordingly, the CEP acts as an impermissible subsidy for major party candidates, rather than a permissible substitute for those traditional sources of funding."

While I do not have historic data available to back this up, my understanding is that the limits were established based on historic fundraising and spending levels of competitive races. This is higher than the historic expenditure levels in non-competitive races and was chose to encourage races to be competitive. As such the first argument of Judge Underhill's ruling is questionable and appears to give good grounds for an immediate appeal.

Judge Underhill's second concern is that the "the use of a statewide proxy artificially enhances the political strength of many major party General Assembly candidates by disregarding the level of public support for those candidates within their actual legislative district; in the past three election cycles". This, together with his third assertion, that "the CEP’s additional qualifying criteria for minor party candidates are so difficult to achieve that the vast majority of minor party candidates will never become eligible to receive public funding at even reduced levels" provides the basis for his belief the program discriminates against third party candidates. He goes on to say that "the evidence in the record establishes the CEP’s petitioning requirement thresholds are nearly impossible to achieve".

However, the facts clearly indicate otherwise. In 2008, the Independent party fielded six candidates for State Representative. Half of them participated in the CEP and received grants. In addition a Petitioning candidate for State Representative also applied for and received a grant. In the State Senate, Cicero Booker who ran as a Working Families Party candidate and an Independent Party candidate received a full grant. The evidence on the public record is contrary to what Judge Underhill used which would appear to provide a basis to challenge his decision.

Beyond the disregard for the factual record that Judge Underhill has shown, people close to the case have suggested that he has also ignored precedent from similar cases in other states and he has failed to show adequate judicial restraint. He could easily have rule that only the provisions of the program related how minor party candidates qualify for funds were unconstitutional instead of the whole program. This would have allowed the program to continue, perhaps in a manner which would even better meet the goals of the program.

Stamford Mayor Dan Malloy, potential candidate for Governor in 2010 released a statement Friday morning stating:

I am a staunch supporter of public campaign financing. The most important aspect of any such law is that it is fair to all parties involved, creating a level playing field for elections. This ruling contends that the law does not achieve that very simple goal. If that's true, then the state needs to fix those problems so that the program achieves what our lawmakers intended when they created it. Hopefully we can do that in a timely fashion and the program will be stronger for having gone through the process.

On MyLeftNutmeg, Ken Krayeske asks “will the legislature create a replacement law fitting Underhill's guidelines, and second, does this decision benefit minor parties?” To the first question he responds, “I doubt the legislature will get it together prior to the 2010 election”. To the second question, he presents a few different views. He goes on to bet that “that the state appeals the decision to the Second Circuit”. This is a very likely scenario. Perhaps the bigger question is can the state get an immediate stay.

Full disclosure: My wife Kimberly was a member of “a group of intervenor-defendants who support the principles underlying the CEP”. She withdrew from that group when she took her job with Common Cause. Since then, much of her work has been to get citizens to understand and participate in the program. It is my opinion that the judge has failed to understand the program and made his decision based on false information.

Update: Secretary of the State Susan Bysiewicz and Attorney General Richard Blumenthal will be holding a press briefing at noon at the Attorney General's Office, 55 Elm Street, Hartford, on the 7th floor today to discuss the implications of the ruling.

Update 2: Common Cause has issued their press release which includes

Karen Hobert Flynn, Vice President of State Operations for Common Cause
said, "I don't believe the states elected officials will follow judge
Underhill over the cliff. His decision was selective in his use of the
factual record, ignored important legal precedent, and demonstrated
little judicial restraint. We are confident it will be overturned on
appeal. Common Cause in Connecticut will work with Speaker Donovan,
Senator Williams, Governor Rell and the General Assembly to insure the
law's funding and provisions remain intact while an expedited appeal of
this radical decision is pending."

The press conference should be happening now. I will update as I get updates.

In addition, I've received helpful feedback about the original draft of this blog post. I made some changes to improve the clarity and tone. You can read an earlier version as a Facebook Note.

Update 3:
Kim is at the press conference being held by the Attorney General and Secretary of State and is tweeting parts of it.

You can see her tweets at @khynes2000.

In addition, I've set up a CoverItLive feed which pulls in her tweets.