How to Fairly Fund an Election

In 2005 Connecticut became the third state, after Arizona and Maine, to establish public funding for election to state offices. Last year, elements of its sweeping reform legislation were declared unconstitutional, and the state now awaits a ruling by the Second Circuit Court of Appeals on the constitutionality of other key provisions. The Supreme Court’s recent decision in the Citizens United case, which allowed direct corporate funding of political campaigns, may play a role in the outcome.

U.S. District Judge Stefan Underhill ruled in 2009 that the Connecticut reform law – called the Citizens Election Program – did not treat minor parties equally. He also struck down some of the public-funding provisions, such as automatic payments to candidates whose opponents spend higher amounts on their campaigns. But, importantly, he upheld a ban on contributions by lobbyists. That provision could face further scrutiny in light of the Citizens United case. 

The law, which was designed to encourage citizen participation and limit the role of private money in Connecticut’s political process, was first implemented in state house and senate races in 2008. To participate, candidates must agree to abide by certain guidelines, such as raising small contributions from numerous donors to demonstrate one’s ​“viability” as a candidate. Those who successfully do so become eligible for a matching grant.

A minor-party candidate qualified for a matching grant if a member of her party received a certain percentage of the vote during the previous election cycle. If none participated in the previous election, a candidate had to gather a certain percentage of signatures from voters. Neither of these requirements applies to major-party candidates. That fact was the basis for Underhill’s ruling. 

Martin Looney, the Democratic State Senate Majority Leader, said that some of the elements Judge Underhill declared unconstitutional ​“were exactly the things that helped [it pass] in the General Assembly in the first place,” including the tougher requirements for third parties to qualify for public funding. ​“There was concern about not having enough thresholds for third-party and minor-party candidates to demonstrate basic community support.” 

In 2008, most candidates for the state legislature participated in the program, and the law did change the culture in Hartford, the capital. Many politicians expressed relief that they could listen to lobbyists on a variety of issues while not being beholden to them. 

The League of Women Voters was one of many groups that filed amicus briefs in the Citizens United case. Christine Horrigan, government director for the organization’s Connecticut chapter, says that the league is working hard to promote changes in Connecticut’s election reform law so that it passes Constitutional muster. ​“From our perspective, public financing of campaigns is very crucial – and perhaps the only viable alternative to opening the door to all of this corporate money flowing into our election system.” 

Nick Nyhart, co-founder and CEO of Public Campaign, wrote in an e-mail that the Citizens United decision ​“has created a galvanizing moment for those who care about democracy and effective governance. This wrong-headed ruling has drawn national attention to the ineffectiveness of our money-drenched Congress and increased the ranks of those seeking far-reaching reforms, ranging from small donor-driven public financing to amending the Constitution.”

Democratic Rep. James Spallone co-chairs the committee in the Connecticut legislature that is responsible for fixing the parts of the law that Judge Underhill declared unconstitutional. He introduced a bill on the first day of this year’s session, in February, that aims to level the playing field for minor parties.

Spallone says he is not worried that the Citizens United ruling will affect the state’s plans to ban lobbyists’ contributions – though that issue is being appealed at the Second Circuit – because he sees a fundamental difference between corporate free speech and lobbyists’ contributions.

“The Supreme Court of the United States has always made a strong distinction between contributions and expenditures,” he says. ​“The Court views expenditures much more closely aligned with First Amendment speech, whereas a contribution, which a lobbyist or contractor might make to a candidate, is really assisting the candidate to speak.” 

Nyhart (who is a Connecticut resident) predicts that the changes coming to Connecticut’s law would strengthen third parties and clean up the funding process, ​“so that if candidates need extra money for their races [to match big-spending opponents], they will not get it automatically but will get matching funds when they raise a lot of small donations.” 

There is currently between $36 million and $40 million in the election fund, but more than one elected official has hinted that the fund is vulnerable to being raided and applied to the state’s $500 million current budget hole. As far as public funding is concerned, that would create a truly equal playing field. Everyone would be back to square one.