Connecticut Common Cause, Connecticut Citizen Action Group and two other intervening defendants filed a brief today in the Supreme Court urging the Court to decline to review a case in which the U.S Second Circuit Court of Appeals upheld the constitutionality of Connecticut’s public financing system for state elections.

Unlike the case involving a challenge to Arizona’s public financing law that is currently  before the Supreme Court and is scheduled for oral argument on March 28, 2011, the Connecticut case “has nothing in common” with the Arizona case, according to the brief filed today. The Connecticut case deals with an issue not involved in the Arizona case, namely a challenge to the provisions in the Connecticut public financing law applicable to minor party candidates.

In the Connecticut case, Green Party v. Lenge, the plaintiffs argue that the Connecticut public financing law unconstitutionally discriminates against minor parties in the different requirements it applies for minor party candidates to qualify for public financing than it applies to major party candidates.

In this regard, the Connecticut system is similar to the presidential public financing system whose provisions for funding minor parties also differ from the provisions for funding major parties. Along with the rest of the presidential public financing law, the minor party provisions were explicitly upheld as constitutional by the Supreme Court in the landmark case of Buckley v. Valeo (1976).

Based on the Buckley decision, the Second Circuit Court of Appeals upheld the Connecticut law, finding that the law did not unconstitutionally discriminate against minor party candidates.

The plaintiffs filed a petition for certiorari in December, 2010, asking the Supreme Court to review the Second Circuit decision. The brief filed today by intervening defendants urges the Court to reject the petition and leave the Second Circuit decision standing.

According to Karen Hobert Flynn, Common Cause Vice President for State Programs, who led the successful fight in Connecticut to enact the state’s public financing law:

The landmark public financing reform passed in Connecticut in the wake of widespread pay-to-play corruption has enjoyed widespread candidate participation of over 70% in the last two elections. Republican, Democratic and minor party candidates who have demonstrated viability have had access to never before financial resources. The program has allowed viable candidates from any political party to run for office without having to rely on wealthy backers or special interest money.

In today’s filing with the Supreme Court, intervening defendants argue that the Second Circuit was correct in concluding that the Connecticut public financing system does not present unreasonable barriers to minor party success, and in fact has permitted a number of minor party candidates to qualify for funding.  

The brief notes in arguing that the Supreme Court should not review the case:

Strikingly, petitioners identify no decision of any appellate court since Buckley that has found minor parties to be unduly burdened by any public finance law in any jurisdiction. On the central issue in the case, they identify no conflict among the lower courts and no unresolved issue of broad national importance. Instead, petitioners request that this Court wade into the fact-intensive issue of whether Connecticut’s qualifying criteria are too onerous in comparison to the criteria upheld in Buckley. But this Court does not sit to review the lower courts’ application of settled principles of law to particular facts.

The brief further notes, “Petitioners’ claims that the Second Circuit erred are in any event unpersuasive. The Second Circuit carefully examined the record and reached the conclusion that the Connecticut statute’s qualifying criteria do not present unreasonable barriers to minor-party success, and in fact have permitted a significant number of non-major-party candidates to qualify for funding.”

The intervener defendants’ brief recites evidence which showed that 15 non-major-party candidates qualified for public funding in the 2008 election, most based on the results of elections for the same positions in 2006, but some through petitioning. Election results in 2008 entitled at least 15 non-major-party candidates in Connecticut to qualify for funding in 2010, including five who reached the 20% threshold for full funding and four who qualified for two-thirds grants by receiving 15% of the vote. The 15 non-major-party candidates who received enough votes in 2008 to qualify for funding in 2010 represented well over one third of the 40 non-major-candidates who ran for state legislative office.

According to the brief, the evidence also showed that the overall performance of minor parties did not suffer with the advent of public funding in the 2008 election. “On the contrary, minor-party candidates increased their overall share of the vote in 2008, increased their expenditures, and had levels of ballot access and candidate recruiting comparable to those in prior elections,” the brief stated.

The brief explains that in Buckley, the Supreme Court upheld the presidential public financing system as against a similar challenge from minor party candidates:

The pertinent holdings of Buckley include the Court’s recognition that voluntary public campaign-finance systems are fully compatible with the First Amendment because they represent efforts “not to abridge, restrict, or censor speech, but rather to use public money to facilitate and enlarge public discussion and participation in the electoral process, goals vital to a self-governing people.” 424 U.S. at 92-93. The Court further held that, in assessing equal protection challenges to public campaign-finance laws based on arguments that they invidiously discriminate against candidates or parties who are ineligible for funding, the same degree of “exacting scrutiny” applicable to limits on ballot access is not appropriate because “public financing is generally less restrictive of access to the electoral process than the ballot-access regulations dealt with in prior cases.” Id. at 95. As the Court explained, “the inability, if any, of minor-party candidates to wage effective campaigns will derive not from lack of public funding but from their inability to raise private contributions.” Id. at 94-95.

The brief continues:

The Court thus held that a public-finance system that conditions eligibility on a candidate’s or party’s level of popular support is constitutional if it serves “sufficiently important governmental interests and has not unfairly or unnecessarily burdened the political opportunity of any party or candidate.” 424 U.S. at 95-96. The Court recognized that public financing served the “significant governmental interest” of “eliminating the improper influence of large private contributions” and “relieving major-party … candidates from the rigors of soliciting private contributions.” Id. at 96. And it stated that the important public “interest in not funding hopeless candidacies with large sums of public money, … necessarily justifies the withholding of public assistance from candidates without significant public support.” Id. Requiring a showing of significant public support, the Court said, “also serves the important public interest against providing artificial incentives to ‘splintered parties and unrestrained factionalism.’” Id.

The brief also notes that as stated in the Buckley decision, “[s]ometimes the grossest discrimination can lie in treating things that are different as though they were exactly alike.”

The intervener’s brief  points out that the issues in the Green Party case have “nothing in common” with the issues in another case currently pending before the Supreme Court, McComish v. Bennett, which involves a challenge to the constitutionality of provisions in the Arizona public financing law not involved in the Connecticut case.

The Arizona  case involve “trigger funds” provisions in the state’s public financing law that give a candidate participating in the public financing system additional funds to match spending by nonparticipating candidates or outside groups when that spending exceeds the initial grant provided to the participating candidate.

This issue is different than the issue in the Connecticut law of whether minor party candidates are treated constitutionally by the criteria set by the law for their qualifying for public funding.

Indeed, as the interveners’ brief notes, the Connecticut law originally contained “trigger funds” provisions similar to those in the Arizona law, but the Connecticut “trigger funds” provisions were struck down by the Second Circuit Court of Appeals and subsequently repealed by the Connecticut legislature. (However, the “trigger funds” provisions in the Arizona public financing law were upheld as constitutional by the Ninth Circuit Court of Appeals.) Thus, the Connecticut law no longer contains “trigger funds” provisions and does not raise the issue presented in the Arizona case.

“There are various forms of public financing systems nationally and in the states, some of which include “trigger fund” provisions and a number of others that do not,” said Fred Wertheimer, president of Democracy 21 and a member of the legal team representing the intervening defendants in the Green Party case.

“The Campaign Legal Center and Democracy 21 joined by other reform groups have filed an amicus brief in the Supreme Court defending the constitutionality of the Arizona public financing law and its “trigger funds” provisions,” Wertheimer said.

“It is also important to recognize, however, that public financing systems can be and have been effective without “trigger fund” provisions, as demonstrated, for example, by the success of the presidential public financing system for most of its 35 year existence and the Connecticut public financing law in 2010,” Wertheimer said.

The intervening defendants in the Green Party case are represented in the Supreme Court by Democracy 21’s  “Project Supreme Court” legal team, led in this case by former U.S. Solicitor General Seth Waxman and Randy Moss of WilmerHale and Scott Nelson of the Public Citizen Litigation Group.   Other “Project Supreme Court” lawyers in the case include attorneys from WilmerHale, Democracy 21 and the Campaign Legal Center. Also representing the intervener defendants in the case in the Supreme Court are lawyers from the Brennan Center for Justice and Hogan Lovells. In the lower court proceedings for the Green Party case, the intervener defendants were represented primarily by Ira F. Feinberg, a partner at Hogan Lovells, and Monica Youn a lawyer with the Brennan Center.