By Ted Mann
Publication: The Day
New York - The landmark 2005 campaign finance law that was the state's most significant response to a spate of political corruption scandals should be struck down, lawyers for Connecticut lobbyists, contractors and civil liberties advocates urged a federal appeals court Wednesday.
In a hearing before a three-judge panel of the 2nd U.S. Circuit Court of Appeals, opponents of the law said its bans on political contributions from lobbyists and state contractors unfairly infringed on their rights to free speech, scapegoating them for a series of scandals in which they took no part.
And opponents of the public financing provisions of the law urged the appeals panel to uphold a lower court's ruling that the Citizens Election Program, the public fund that provides grants to political candidates, is unconstitutional because it sets different standards for access to those funds for major and minor political parties.
The state ban on lobbyist and contractor campaign contributions and fundraising solicitations "restricts too much speech and restricts too broad a class who are disconnected from the evils this statute purports to address," said Mark J. Lopez, a cooperating counsel for the American Civil Liberties Union and ACLU-Connecticut, which has represented the Green Party of Connecticut in its challenge to the law.
The law was passed only months after the resignation of Gov. John G. Rowland amid a corruption investigation.
Arguing on behalf of the Connecticut Association of Lobbyists, attorney R. Bartley Halloran said his clients, who had had "no involvement" in the corruption scandals that sank Rowland and others, would nonetheless be punished by being banned from giving to state candidates and from soliciting campaign contributions for them.
In addition, lobbyists would be prevented from serving as "officers" in political organizations, a provision that Halloran noted could prevent a lobbyist even from serving on his or her town party committee.
"If we're not allowed to participate, we're not full citizens," Halloran said, "and there is no justification for that."
Attorneys for the state argued that the law already has helped to strip the monetary influence of special interest groups out of Connecticut campaigns and, as to the public financing portion of the law, has provided a means for lesser-known and poorly funded legislative candidates to contest incumbents on equal footing.
And even if the appeals court is inclined to rule against the state, attorneys from the office of Attorney General Richard Blumenthal and the Brennan Center for Justice at New York University argued, it would be unfair to do so now - when the first campaigns for statewide office under the public financing program are in full swing.
"I do think that it would be grossly unfair for the court ... to upend the system," said Ira Feinberg, an attorney who has worked with staff from the Brennan Center on the defense of the Connecticut law. Feinberg argued in defense of the law Wednesday along with Connecticut Associate Attorneys General Perry Zinn Rowthorn and Gregory T. D'Auria.
Feinberg and Rowthorn both argued that legal precedent allows legislatures to set differing standards for major versus minor parties to receive grants and gain access to the ballot, as the Connecticut law does.
"To enjoin this entire program based on the way it deals with minor parties is really letting the tail wag the dog," Feinberg said.
Beth A. Rotman, the director of public campaign financing for the State Elections Enforcement Commission, who observed the arguments, said she thought the arguments went well, and she estimated that a decision likely would not be released for several months, far too close to Election Day.
"Connecticut citizens deserve to have clean elections in 2010, as they did in 2008," Rotman said. "It is absolutely too late to make any kind of negative ruling" on the program.
But counsel for the opponents of Connecticut's law also had reason to take solace, particularly in Judge Jose A. Cabranes' aggressive questioning of government attorneys about the limits and ramifications of the restrictions on lobbyists' political activities.
While attorney Ira Feinberg argued that opponents have made "blatant misrepresentations" of the effects of the lobbyist ban, Cabranes engaged him in a hypothetical exercise: If Cabranes was the registered lobbyist for the Connecticut Bar Association, he asked, could he legally tell members of the association about an upcoming fundraiser that would be held by a candidate who supported the bar association's positions?
Yes, Feinberg said.
Could he "recommend" that members attend the fundraiser, or would that effectively solicit a contribution for a political candidate, something state lobbyists are now banned from doing?
"You can advise them that there is a fundraiser," Feinberg said. "I don't think you would 'recommend.'"
"This is not the easiest law to understand," Cabranes said, smiling, as Feinberg briefly hustled back to his table to confer with Rowthorn. "Even your body language suggests this is not the easiest."
"The record will reflect Mr. Feinberg in pain," Cabranes said, drawing laughter from the audience.
Once again this year, The Day is running its Peeps competition, in which we invite you to take Easter's favorite candy – Peeps – and turn them into art.
Is the state's campaign finance law unconstitutional?
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