Supreme Court Skepticism May Ripple Toward CT Elections

WASHINGTON--An obviously divided Supreme Court probed the constitutionality of Arizona's public campaign finance system on Monday, considering a case that will have ripple effects in Connecticut and other states that have enacted similar laws.

The nine justices appeared to be narrowly split over the question of whether supplemental public financing grants for participating candidates--triggered when an opponent crosses a certain spending threshold-suppress or encourage free speech.

The justices also sparred over whether such a system was designed to "level the playing field" among various candidates--or whether it was set up to guard against political corruption, a more justifiable public-interest goal.

Although Monday's arguments at the high court focused on Arizona's law, Connecticut had essentially the same system in place during part of last year's hotly contested gubernatorial election. Both Democrat Dan Malloy and Republican Michael C. Fedele got $2.5 million in funding grants through Connecticut's Citizens' Election Program, allowing them to keep pace with their respective self-funding opponents, Ned Lamont and Tom Foley.

A federal appeals court in New York ruled that Connecticut's triggered matching grants system was unconstitutional, while a California court said Arizona's law was fine. Three Connecticut parties filed briefs in the case, albeit on opposing sides.

The state's Attorney General, George Jepsen, and Ned Lamont, who spent $9 million of his own money in last year's Democratic gubernatorial primary race, both argued that a matching grant system helped to foster a robust democratic system. Jepsen said a ruling in favor of Arizona's system would "restore the flexibility of Connecticut and other states in designing and implementing public campaign finance systems."

The Yankee Institute for Public Policy, a conservative think tank based in Hartford, argued that Connecticut's matching grant program had a "chilling" effect on free speech and distorted the 2010 Connecticut governor's race. Fergus Cullen, the Institute's executive director, waited for hours in Monday's 30-degree morning chill to get a seat in the Supreme Court chamber for the arguments.

If the line of questioning at today's Supreme Court hearing is any indication, the justices appear to be headed for a 5-to-4 decision that strikes down Arizona's matching grant system--and that therefore forecloses Connecticut's ability to revive its own version of that law.

Opponents of the Arizona law argued today that triggered matching grants are an unjustified government interference in elections and serve to "manipulate" speech and campaign spending to the benefit of candidates who participate in public financing.

William Maurer, a lawyer for several parties challenging Arizona's law, said the matching grant system "turns my act of speaking" into a government subsidy for his political opponent. "Each time [a nonparticipating candidate] spends... the more their opponent benefits."

Justice Elena Kagan, the newest member of the court and an appointee of President Barack Obama, was clearly skeptical.

"There's no restriction at all here. It's more speech all around," Kagan said. "The trigger does not trigger a penalty. It triggers a subsidy."

Yes, said Maurer, but that subsidy goes to another candidate, and therefore serves as an incentive to restrain one's own campaign outlays. "We're dealing with a very different kind of First Amendment harm," he said.

Justice Ruth Bader Ginsburg suggested the system allows states to economize, by giving out the grants in incremental steps based on how much an election is actually costing, rather than in one big lump sum based on an estimate. She pressed Maurer on whether a lump-sum system that took into account the possibility of a big-spending opponent would be constitutional in his view.

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