A Collaboration with the University of Pittsburgh

Court ruling against Connecticut campaign finance law helps level political playing field

Joshua Katz [Legislative Director, Libertarian Party of Connecticut]: "The Libertarian Party of Connecticut joined with the state's Green Party to file a lawsuit [PDF file] in federal court challenging the state's Citizens' Election Program. We maintained that this program was unconstitutional in that it imposed asymmetrical burdens on minor parties vis-a-vis the Republican and Democratic parties in elections within the state. While billed as an opportunity for political unknowns without access to fundraising to compete on an equal footing with more established candidates, the effect of the law was rather to give additional advantages to established candidates and incumbents. We were gratified that the court agreed with us, maintaining that the law imposed a severe burden on minor party candidates without imposing a similar burden on candidates from major parties.

The Citizen's Election Program (CEP) offered public funding for candidates for various offices, with the amount of funding dependent on both the office sought and the amount of money already raised. In addition, a candidate who hoped to seek CEP money had to comply with various restrictions on his own fundraising. Because of the large amount of money that a candidate needed to raise before qualifying for this public funding, the impact was to simply magnify any difference in fundraising ability present at the outset of the race, not to reduce it. An unknown candidate would have great difficulty meeting the required hurdles, while his better known opponent would easily qualify. As if this weren't enough, though, the law went further and actually allowed some major party candidates to qualify without demonstrating any particular level of public support, while all minor party candidates had to jump over numerous hurdles.

It might be objected that failing to qualify for funding is not a hindrance, just the absence of aid, and that anyway, Libertarians oppose public funding of campaigns, and so it is odd (to say the least) that we would complain about not being able to qualify for such funding. Such an analysis, though, misses a crucial point. A candidate who does not qualify for funding, while his opponent does, is not left no better or worse off than he would be if such funding did not exist - he is much worse off, as his opponent now has more money to campaign against him.

Now, the hurdles have been justified on the basis of the need to save money. After all, the state cannot be expected to fund anyone who announces that he is running for office, and even qualifying for ballot access is a relatively low hurdle - being on the ballot does not, according to this argument, a viable candidate make. So the fundraising requirement and other hurdles limit public funding to those who are viable. Yet consider that most minor party candidates run in elections with at least 3 candidates, and that the hurdles amount to requiring 20% support before qualifying for funding. In a tight race, a candidate winning with 35% or 40% would not be unlikely. This is particularly true for minor party candidates (whereas a Republican cannot expect his Democratic opponent and his Green opponent to split the vote evenly, a Libertarian may hope that his two opponents will), and so a 20% requirement would necessitate, before qualifying for funding, that the candidate be more than halfway to victory! This is after the minor party candidate spent most of his initial funding, and a great deal of time, achieving ballot access, which his opponents were not required to do. Furthermore, he must achieve this without public funding, after both of his opponents received public funding!

By striking down this law, the court took a great step forward in ensuring open access to the political process for Connecticut residents. Unfortunately, many Connecticut elected officials, all from major parties, have stated that they will seek ways to keep the laws in effect, both by appealing and by creating new laws which skirt the judge's decision. What needs to be addressed, though, is the state's web of special privileges for some parties at the expense of others. The last thing we need is a new program that will reinforce these privileges by other means. A plan of action for opening access to the political process would need to include entirely scrapping the CEP, followed by a fundamental revision to the laws for ballot access. While some would simply drop ballot access requirements, many believe that doing so will simply crowd the ballot, making it hard for serious candidates to be heard. A reasonable solution, though, does exist - all parties could be subjected to equal ballot access requirements for each office. In any case, removing public financing of campaigns is an important step. It must be remembered that public financing laws are written, considered, and voted on by incumbents from major parties. It would be unreasonable to expect those incumbents to pass laws making it easier for challengers to succeed, and in particular for minor parties to succeed. More generally, is it possible to not understand the serious dangers presented by increased political control of elections? When incumbents make decisions about which candidates receive what funding, rather than those decisions being made in a decentralized manner by each citizen who decides to contribute money to a campaign, how can a fair outcome be expected?"

Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.

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