Re:  Significant Constitutional and Practical Issues with Senate Bill 1126 (as Substituted)

Dear President Pro Tempore Looney, Senate Minority Leader Fasano, and members of the Senate:

On behalf of The Center for Competitive Politics (CCP),[1] Senior Fellow Eric Wang[2] has analyzed S.B. 1126, as substituted favorably by the Joint Government Administration and Elections Committee[3] and finds that the bill severely threatens core First Amendment rights.

These concerns are discussed in more detail below.

I. SB 1126 could convert a virtually limitless universe of civic activities into “coordinated” spending.

As substituted, S.B. 1126 could turn virtually any civic group with which an individual is involved into a “coordinated spender,” if the individual later becomes a candidate, thereby converting all of the group’s activities into prohibited in-kind contributions to the candidate.

A “coordinated spender” includes any entity that is “directly or indirectly formed, controlled or established in the current election cycle by, at the request or suggestion of, or with the encouragement of” a candidate.[4] In addition, any entity for which an individual raises money – even if that individual does not become a candidate until several years later – also is considered a “coordinated spender,” unless it segregates funds raised by such an individual into a separate account that is not used to “benefit” that individual (whatever that means).[5]

For the purposes of the coordination law, someone could be considered a “candidate” even long before the individual decides to run or explores a possibility of running, so long as he or she later becomes a candidate and “benefits” from an expenditure made by a “coordinated spender.[6]

Similarly, “expenditure” is defined quite broadly and can include virtually anything imaginable that is deemed to “promote the success or defeat of any person seeking” nomination or election,[7] although there are specific exceptions, such as communications that refer to candidates prior to 90 days before an election in which the referenced candidate will be on the ballot.[8]

Assuming an “election cycle” for a gubernatorial candidate is four years,[9] one can easily imagine how a common scenario such as the following becomes a tremendous problem:  Imagine a former Connecticut state senator named Alice Gore, who is a prominent advocate of policies to prevent climate change. In 2015, a group of individuals consults with her about forming a 501(c)(4) environmental advocacy group, Connecticut Cares About Climate Change (CCACC). She encourages them in their endeavor and raises money for the group. In 2018, Ms. Gore decides to run for governor, and climate change is a major part of her campaign platform.

Because CCACC was formed “with the encouragement” of Ms. Gore and she raised money for the group, CCACC is a “coordinated spender.” Due to the broad definition of “expenditure,” the millions of dollars that CCACC has spent during the “election cycle” on climate change advocacy easily could be deemed to “benefit” and “promote the success” of Ms. Gore’s candidacy, and thus would be a prohibited and excessive contribution to her campaign.[10]

Alternatively, suppose Ms. Gore founded CCACC in 2015. According to her critics and opponents, Ms. Gore used CCACC as a springboard for her gubernatorial ambitions, notwithstanding the legitimate work the organization has done in promoting climate change advocacy. Again, as an organization “established in the current election cycle by” Ms. Gore, CCACC is deemed to be a “coordinated spender,” and almost everything the group does could be deemed to be coordinated expenditures and prohibited in-kind contributions to Ms. Gore’s campaign (outside of the specific exceptions set forth in proposed Conn. Gen. Stat. § 9-601b(b)). Paradoxically, if CCACC were to sponsor an television ad 91 days before the general election praising Ms. Gore for her work promoting climate change awareness, that would not be considered an expenditure or coordinated expenditure.[11]

II. S.B. 1126 would diminish candidates’ opportunities to interact with voters.

S.B. 1126 inexplicably and unjustifiably removes the provision in current Conn. Gen. Stat. § 9-601c(c),[12] which exempts any event at which a candidate participates from being treated as a coordinated expenditure, provided that the event does not “promote[] the success of the candidate’s candidacy or the defeat of the candidate’s opponent, or unless the event is during the period that is forty-five days prior to the primary for which the candidate is seeking nomination for election or election to office.”

The current provision, eliminated by S.B. 1126, provides critically important breathing space for organizations to sponsor events, such as a county fair or Rotary Club meeting, where voters have a chance to get to know the candidates without being required to make a campaign contribution. The current provision rightfully acknowledges that, so long as these “meet the candidate” events are not campaign rallies that the campaigns themselves should pay for, the sponsors of these events should not be treated as making a coordinated expenditure or in-kind contribution to the candidates who show up at these events.

It is important to note that, although many organizations sponsoring events at which candidates appear under the current statute probably would not meet the definition of a “coordinated spender” under S.B. 1126, an organization does not have to be a “coordinated spender” in order for its activities to be considered a coordinated expenditure and in-kind contribution.[13] Given the extremely broad and vague definition of “expenditure” discussed previously, as well as the legislative history that would result if the General Assembly were to affirmatively remove the provision in current Conn. Gen. Stat. § 9-601c(c), it is very likely that any “meet the candidate” events would be considered coordinated expenditures going forward. Connecticut candidates and voters would then be left with a regulatory vicious circle in which candidates would need to attend more and more fundraisers in order to pay for the declining number of events where they can have grassroots contact with voters.

Candidates participating in the Citizens’ Election Program – as most candidates for Connecticut statewide and legislative office do[14] – would suffer an even greater impact from the removal of current Conn. Gen. Stat. § 9-601c(c). Candidates participating in the program may not accept additional contributions once they receive their allotment of public funding, and they also may not spend above strict expenditure limits.[15] Thus, S.B. 1126 would squeeze Citizens’ Election Program candidates from both directions:  not only are they prohibited from accepting in-kind contributions in the form of events sponsored by third parties where they may meet with voters, but they are also limited in how many events their own campaigns may pay for.

To the extent many critics of the current campaign finance system argue that politicians spend too much time raising money, and not enough time meeting with voters,[16] S.B. 1126 is a step in the wrong direction. If anything, S.B. 1126 should be expanding the provision in current Conn. Gen. Stat. § 9-601c(c) by removing the 45-day restriction prior to primaries so that the exception applies to events held at all times prior to any type of election.

III. S.B. 1126 would unduly undermine the parties’ relationship with their candidates.

The rise of super PACs in recent years, has, according to some, further diminished the importance and role of the political parties, which had already been beleaguered by laws such as the federal Bipartisan Campaign Reform Act of 2002.[17] CCP does not side with either the super PACs or the political parties. Instead, CCP believes both are vitally important to a healthy democracy, and both are entitled to the maximum rights afforded by the First Amendment.

S.B. 1126 severely undermines the inherently and necessarily close relationship between the political parties and their candidates.[18] Candidates are the public faces of the parties and their representatives on the ballot. As such, they are typically the biggest draws at fundraising events for the party committees. S.B. 1126, however, would treat a party committee as a “coordinated spender” if one of its candidates raised so much as a cent for the party.[19]

Unless the party committee creates a separate account for each fundraiser at which a candidate appears, and which account would be off-limits for use in supporting that respective candidate, any expenditure the party makes in support of that candidate would be treated as an in-kind contribution to the candidate and subject to the state’s contribution limits.[20] If even a dozen candidates raise money for a state party committee, that means the party would have to create a dozen different accounts, each of which would be restricted from spending money in support of those respective candidates. If more than one candidate appears at any given fundraising event, the permutations for the accounting and recordkeeping requirements multiply exponentially. Given these daunting burdens, the candidates effectively would be prevented from raising money for their party committees.

However, S.B. 1126 attacks candidate fundraising for party committees at an even more preliminary level. The bill would create a rebuttable presumption that any “fundraising activities with or for a candidate…or party committee” are coordinated expenditures.[21] Thus, before even getting to the question of whether the party committee has to create separate accounts for each candidate, and what each account may be used for, the legislation treats the very act of holding a fundraiser itself as a coordinated expenditure between the party committee and the participating candidate. If a state party committee spends $10,000 to rent a hotel ballroom and for catering at its annual Jefferson-Jackson Day or Lincoln Day dinner fundraiser, and a state Senate candidate shows up and speaks, the committee is already deemed to have given the maximum contribution it is entitled to make to that candidate.[22] This simply makes no sense.

IV. S.B. 1126 would unnecessarily and unconstitutionally restrict family support for a candidate.

S.B. 1126 would effectively prohibit any member of a candidate’s immediate family from giving more than $2,000 to a super PAC to support that candidate.[23] Are we really concerned about mothers and fathers corrupting their sons and daughters by supporting their children’s bid for elective office?[24]

If corruption is not the concern, then the only public policy rationale for this prohibition seems to be to “level the playing field” so that certain candidates who may have greater family wealth do not have an “unfair” advantage over other candidates. Whatever one personally thinks of this public policy concern, the Supreme Court has made it emphatically and repeatedly clear that campaign finance laws aimed at “leveling the playing field” are unconstitutional.[25]

Paradoxically, a candidate’s third cousin, who is a lobbyist for the Acme Widget Corporation, or the Acme Widget Corporation itself – both of whom would like to see a candidate elected who favors the widget industry – could give unlimited amounts to a super PAC supporting the candidate.[26]

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As substituted, S.B. 1126 would convert a stunning variety of activities into “coordinated” spending, diminish candidates’ opportunities to interact with voters, undercut the parties’ relationship with their candidates, and unconstitutionally restrict a family’s support for a candidate. Given the aforementioned issues, there exists a significant possibility of litigation on the provisions contained within this measure. The Center recognizes, of course, that these serious issues were likely unintended. Nevertheless, members of the Senate must realize these significant constitutional and practical issues as they contemplate this bill.

Thank you for considering this analysis of Senate Bill 1126, as substituted by the Joint Government Administration and Elections Committee. Should you have any further questions regarding these issues or any other campaign finance proposals, please do not hesitate to contact the Center at (703) 894-6800 or by e-mail to Matt Nese, the Center’s Director of External Relations, at mnese@campaignfreedom.org.

Respectfully yours,

Eric Wang
Senior Fellow
Center for Competitive Politics