Once again the citizens of the Constitution State are questioning the actions of their politicians.  The bi-partisan ‘Clean Elections’ Act has been amended on party lines and sparked serious debate.  With the upcoming Gubernatorial Election, both parties have much at stake, and immediate changes were necessary in light of the 2nd Circuit’s ruling that a part of the act was unconstitutional.  But with the way these changes were adopted, the citizens of Connecticut are wondering if these adaptations are really just making their ‘Clean Elections’ Act dirty.

The original Citizens Election Program (“CEP”) was established under the ‘Clean Election’ Act’s passing in 2005 during a time of political turmoil in Connecticut.  Governor John Rowland’s 2004 resignation amid controversy regarding inappropriate interactions with state contractors helped to contribute to the bill’s support.  Its passage establishemaloyd public financing for all statewide races, banned contributions from contractors and lobbyists, and was widely considered to be a model system for publicly funded elections.  Currently, Connecticut is also operating a pilot program for public financing of municipal elections, which is the first of its kind among the states.  The CEP has been widely supported from both sides of the aisle in Connecticut and beyond.

The program, however, has not been completely without controversy. On July 13, 2010, the 2nd Circuit reversed in part and affirmed in part a consolidated case challenging aspects of the Citizens Election Program.  The “trigger” provision, which allows for a publicly funded candidate to receive more funding if their non-publicly-funded opponent crosses a certain threshold of spending, was strictly scrutinized for its First Amendment implications and ultimately found to be unconstitutional by the court.  Here Connecticut is not alone, as other states with public financing options, such as Arizona and Florida, have been challenged (read more about “trigger” funds on SOE).

The “trigger” provision of the Connecticut act originally called for additional public funds to be given to a qualifying publicly funded candidate if they were outspent by a non-qualifying candidate.  In the Gubernatorial race, qualifying candidates receive an initial $3 million basic grant and were eligible to receive up to $9 million total if the opponent triggered certain threshold marks.  However, it was these “trigger” provisions which the court found impermissibly restricted the right of candidates and other individuals and organizations to spend their own funds on campaign speech.

Because of the decision from the 2nd Circuit, the Connecticut legislature was pushed to alter their now-unconstitutional act prior to this fall’s election.  On July 30, the Connecticut General Assembly passed a bill to amend the act.  Specifically, the bill changes the basic gubernatorial grant from $3 million to $6 million, removing the necessity of a trigger for the publicly funded candidate to receive the greater amount.  This bill was passed 75-45 with 31 absent. On August 2, Governor Jodi Rell vetoed this bill, stating she refused to support a bill which acted as, “a welfare program for politicians.” The vetoed bill returned to the House on July 13th where the Governor was overridden 106-30 with 15 absent.

When the bill was sent back from the Governor, the fight for passage split the House.  Of the 106 in favor (of the necessary 101), all were Democrats, and of the 30 opposed, all but 1 were Republican. On the one side of the bill you have Democrats arguing for fairness to publicly funded candidates who might have been able to access the funds, had the threshold been “triggered” and the provision been upheld, and on the other you have Republicans (and Governor Rell) arguing for the unnecessary injection of millions into a political race. At first glance, it might seem as though it is an inherent difference in opinion politically.  However, it is impossible to analyze this decision without understanding the precise political context under which this veto was overridden and bill was passed.

When the amendment was first passed in July, the Republican Gubernatorial candidate had not yet been chosen.  This meant there was still a possibility that both Dan Malloy (D) and Michael Fedele (R) would have a need for public funding.  However, when the independently wealthy Tom Foley (R) won the primary over Fedele, it was clear only Malloy would require the funding.  The Connecticut House and Senate overrode the veto only three days later on divided party lines.  Maloy will now be able to use a full $6 million in his campaign.

The debate is raging.  Are the Connecticut Democrats selfishly using their dominance in the legislature to unconscionably increase the funding for their party’s candidate?  Or is this merely an attempt at leveling the playing field that was met with partisan opposition?  While there are strong criticisms on both sides, it would appear the right and fair move for this Election was to increase the grant base to $6 million, even though its direct effect was to give one candidate more money.  Clearly there was initially bi-partisan support during this bill’s initial passage in 2005 and the opposition was not nearly as starkly political when there was still a chance a candidate from both parties would be able to use the public funds.  The consensus was that the “trigger” funds would have likely been ‘triggered’ anyway in light of the ever increasing costs of running a campaign and Tom Foley’s deep pockets.

When looking at the intent of the 2005 proposal, the measures taken here appear to be an appropriate method of reaching the original goal of evening the financial odds in statewide election.  The legislature approved the use of trigger funds to accomplish that goal and should not be upset when the same amount of money is used in the same way but dispersed on different grounds.  Even though the 2nd Circuit disagreed with their method of determining when to distribute those funds, increasing the base grant here is a straightforward way to address the problem of unequal spending that the act was meant to address.

Though it appears the Connecticut Legislature made the right move here, the approval of this amendment certainly raised eyebrows and led politicians and citizens alike once again to question their leaders in government.  Was this an ‘amendment for one man’?  Maybe, but the application goes far beyond this election cycle.  Perhaps an ‘amendment for one man’ is exactly what the situation required.

Alex Grout is a second-year student at William & Mary Law School.

Permalink: http://electls.blogs.wm.edu/2010/10/29/an-amendment-for-one-man-connecticut-amends-the-citizens-election-program/

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