Citizen's Election Program Hearing: Restrictions on Contributions - Part 1

At about 11:24 on Wednesday April 13th, the oral arguments concerning the Citizen's Election Program began in the Second Circuit in New York City. Two different issues were being considered The first was concerning the restrictions on contributions by lobbyists, state contractors and their immediate families.

Before the arguments began, Judge Cabranes asked two important questions. First, could this case be affected by the imminently expected ruling on the Citizens United v. FEC case currently before the U.S. Supreme Court. Mark Lopez, attorney for the Plaintiffs said that it depends on how wide the decision ends up being. This was followed up by a question about what parts of CFAR are currently enjoined. Attorney Lopez stated that no aspects are currently enjoined because of a mutually agreed upon stay. This agreement was reached based on the Appellate Court expediting the case.

Judge Cabranes continued on by asking what effect a ruling would have on the 2010 election cycle. Attorney Lopez stated that it would have an effect, but that the District Court has given the Appellate Court sufficient time in advance of the election. He acknowledged that the state wide office races had already begun, but that State Representative races would not be starting until April or May. However, potential State Representative candidates have already started visiting town committees.

Attorney Lopez started of by talking about how CEP is too broad and disconnected from the any problem it is supposed to be fixing. It is too restrictive, targeting not only bundling and contributions but also association.

Judge Cabranes asked the question about what forms of oral speech is restricted. Attorney Lopez responded that person cannot ask another person to contribute to a campaign or attend a fundraiser. Attorney Lopez presents a hypothetical case of a child of a state contractor not being able to take a job as an intern with a state party. Such a child could not attend the Andrew Jackson dinner. Judge Cabranes corrected Attorney Lopez saying that he believe d Attorney Lopez was talking about the Jefferson, Jackson Bailey dinner. His comment drew some laughs.

Judge Hall asked if it would be possible to carve out asking for donations as part of the decision. Attorney Lopez said in short, yes that could be done, but that there are larger issues that need to be addressed. Attorney Lopez said that state contractors could not contribute to issue oriented PACs that contribute to campaigns, such as NARAL. He continued on to say that the law was addressing the wrong issues. Less than one percent of contributions came from lobbyists, he maintained. It is an exaggerated problem and the response is exaggerated.

Attorney Lopez expressed concern about the severance provisions of the clean election program. If the program is ended, contributions from state contractors would again be permissible. You cannot have it both ways, he argued, with such contributions suspect on Monday but okay on Tuesday.

Judge Cabranes asked if there were questions on the material front. Attorney Lopez responded that there were no questions on the material from that would have prevented a decision being made in his favor. We stated that he wanted to win on the issue immediately. When asked about if there were issues that he wished to see addressed at a trial, Attorney Lopez talked about how there could be a 100,000 people affected by the State Contractor laws and that there is nothing in the record about problems with bid contracts.

Attorney Lopez was followed by Attorney Hallorin speaking on behalf of lobbyists. He noted that State Representatives can still have PACs that can contribute to campaigns while lobbyists cannot. He suggested that this formed a sort of protection scheme for incumbents. When Judge C asked if his concerns could be severable, he said yes. When Judge C asked how the law was enforced, he spoke about not only the administrative and potential criminal sanctions, but also about how there was no privacy for even spurious accusations of misconduct. Attorney Halloran said that the law does not eliminate special interests, it just eliminated the middle man.

Judge 3, attempting to get clarification about who can and can't say what, asked if the executive director of the Connecticut Medical Association could still testify before the legislature. Attorney Halloran said that he could, and that he could raise funds. Attorney Halloran spoke about how this applies to lobbyists and not the folks that they lobby on behalf of. He referred to SEEC ruling 2006-1 which said that a lobbyist could not be in any way coupled with a fundraiser and that the court found that the standard was what a reasonable and prudent person would find a solicitation. He noted that lobbyists are banned from being officers in local parties and cannot attend fundraisers, even ones at which they are being honored. He continued by noting that no Connecticut lobbyist has ever been convicted in a public scandal.

Judge Cabranes asked if there was a material fact issue. Attorney Halloran stated that he believe the claim that public opinion calls for such measures is a fact he would challenge. He noted that this language was a compromise to get the legislation passed. Judges Cabranes and Hall spent time exploring what sort of remedies Attorney Halloran would consider appropriate and Attorney Halloran suggested that the issues were so extensive the ruling should simply have been in his favor. When asked by Judge Cabranes if he felt that the Judicial findings of fact should over rule Legislative findings of Fact, Attorney Halloron said that in this case he believed so.

(Continued in Citizen's Election Program Hearing: Restrictions on Contributions - Part 2.)

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