soapbox

The Connecticut legislature, in a partisan vote, has passed an unconstitutional campaign finance bill, which is expected to be signed by the GOP governor. Article.
The bill does attempt to discourage negative ads by requiring that all mailings and ads be strongly linked to the candidate by including the candidate's name and photograph. Broadcast ads must include his voice. Automated phone calls, which campaigns often use to persuade voters with criticism of opponents, must include the sponsoring candidate's name and voice.
A similar unconstitutional restriction on speech was erroneously upheld in CT state court, although it conflicts with Supreme Court precedents such as Talley v California.
Seymour v. Elections Enforcement Commission
MAJORITY OPINION (PDF file) | DISSENTING OPINION (PDF file)
SUPREME COURT OF THE STATE OF CONNECTICUT: DECEMBER 19, 2000

I am going by press reports. The text of the bill pdf had been a closely guarded secret until yesterday. If the compelled speech provisions are just part of the strings attached to the public funding aspect, that's less troubling -nope.
The bill discriminates against third parties.
In practice, few third parties will be able to qualify for the funds. There is a petitioning option, which might work in small district.
I call for the formation of "jefferson caucus", for libertarians to run in democratic primaries using public funds until the discriminatory "welfare for Democrats" language is fixed. I am available as a fundraising consultant for such efforts.
Governor Rell's predecessor was booted from office because he acted corruptly. It is corruption for the legislature to enact, and the governor to sign, legislation that
is unconstitutional and void. That's my opinion, not widely shared. I'm currently engaged in an e-mail discussion with the governor's PR rep about what processes the governor uses to decide when to issue a constitutional veto.

One of my pet peeves is articles about bills or cases that don't bother to mention to bill number or case name. I've finally found the bill number in this press release from governor Rell, SB 2103. With that I was able to find the text, in the hated pdf format. Bill analysis.

Ok, here's a problem. The $5000 in qualifying contributions has to come from the district, at least 150 people contributing between $5 and $100. That'll make it tougher for minor candidates to qualify - their support tends to come from around the state, not just within their own district. No, I think I have that wrong. 150 in-district $5 contributions seems to qualify. That's doable, although it rewards machines like Acorn or unions that can send armies door to door shaking down or begging from constituents.

This part is blatant content-based discrimination:
Independent Expenditures (§ 15). When the SEEC (1) receives a report that someone has made, or has obligated to make, an independent expenditure in an effort to oppose a participating candidate or (2) determines at the request of a participating candidate that such an independent expenditure has made against him, it must immediately notify the comptroller. The comptroller has two business days to provide the candidate with additional money equal to the amount of independent expenditure. It also presents fun opportunities to game the system.
I think the Madison Center is litigating one of these somewhere, maybe Colorado.

POLITICAL ADVERTISING (§ 39)

By law, candidate and exploratory committee’s political mailings and advertisements intended to promote or defeat a candidate must contain certain information. The bill adds to the contents of the mailings and advertisements by requiring:

1. mailings to include a picture of the candidate conducting the mailing and his name in the same size font as the mailing’s narrative;

2. television and Internet advertising to include the candidate'’s name, image, and voice before the advertising ends;

3. radio and audio internet advertising to include the candidate'’s name and voice before the advertising ends; and

4. automated telephone calls to include the candidate’s name and voice before the call ends. [I think the automated calls section is constitutional, and is distinguishable from the other parts, as preservative of the privacy of the home.]

If anyone is interested in working with me to challenge the constitutionality of the act, let me know. gtbear at gmail dot com.

I have sent Goveror Rell's office the following letter, to which I don't expect a substantive reply.

Judd Everhart
judd.everhart@ct.gov

Dear Mr. Everhart,
I'm Robbin Stewart. I write an online column about election law at http://ballots.blogspot.com, and am working on revising my article on SB 2103.

I have a few related questions for the governor.
1 Will Governor Rell sign the bill if parts of it are unconstitutional?
2. Would doing so be consistent with her oath of office?
3. Does she have any procedure to review legislation for constitutionality before signing or vetoing?

Cordially,
Robbin Stewart.
Update: I got an answer. It was prompt and polite and responsive, although it didn't actually answer my question.
The Governor will be reviewing the bill with her legal counsel and the director of the State Elections Enforcement Commission to consider the very questions you raise. She has said she will sign it if there are no constitutional problems.
Best,
Judd Everhart
Director of Communications
Governor M. Jodi Rell
State of Connecticut

At the moment, Mr. Everhart and I are continuing the correspondence while I try to get a more specific answer about whether she will sign the bill if it does have constitutional problems. He graciously allowed me to cite the letter above. I hope to have an update friday.

I don't know whether he reads my blog, few people do, but some of the areas of constitutional concern include:
Compelled campaign speech. Talley, Tornillo, Wooley, Riley, McIntyre, ACLF.
Discrimination against minor parties.
Retaliation against independent expenditures.

Horton's Connecticut Constitution at Amazon.
Article 6 section 4 might be relevant.. off to go look.
Distracted already... in 1689, England was having its glorious revolution, resulting ina bill of rights. But how did this affect the colonies? I've never looked into that period. My mom belongs to the mayflower society and visits the library at Plymouth, Mass; maybe she'll have some sources. Or Baude may know something about legal history in Connecticut. My family left Connecticut sometime around then, or early 1700s.

Sec. 4. n1 Laws shall be made to support the privilege of free suffrage, prescribing the manner of regulating and conducting meetings of the electors, and prohibiting, under adequate penalties, all undue influence therein, from power, bribery, tumult and other improper conduct.
Not much help in the text, may be some in the case law.
n1 Purpose of the section and of legislation pursuant thereto is to secure the exercise of free suffrage. 72 Conn. 105. To throw out ballot for immaterial error would not be to support the right of free suffrage. 75 Conn. 15. Cited. 136 Conn. 636.
Since the Horton v. Meskill decision in 1977, the Connecticut Supreme Court has been a continual source of important decisions concerning individual constitutional rights. At a time when the United States Supreme Court is deferring more to the states, the Connecticut Supreme Court more and more is the place where the action is. http://www.cslib.org/cts4ch.htm#9
SEC. 4. Every citizen may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that liberty.
SEC. 14. The citizens have a right, in a peaceable manner, to assemble for their common good, and to apply to those invested with the powers of government, for redress of grievances, or other proper purposes, by petition, address or remonstrance.
SEC. 1. Members of the general assembly, and all officers, executive and judicial, shall, before they enter on the duties of their respective offices, take the following oath or affirmation, to wit:
You do solemnly swear (or affirm, as the case may be) that you will support the constitution of the United States, and the constitution of the state of Connecticut, so long as you continue a citizen thereof; and that you will faithfully discharge, according to law, the duties of the office of...........to the best of your abilities. So help you God.

Friday update: I'm not getting anything useful out of the PR guy. I'm going to go with my hunch that Rell will sign the bill knowing it is unconstitutional. I hope to be proved wrong. Roy Schotland has questions about severability. Severability issues are discussed im section 55 of the bill, line 3667 on page 116. It's not a standard severability clause; it looks more like a partial anti-severability clause. Roy suggests that this may be showboating or grandstanding or something - pass a bill you expect to be shot down by the courts.
In the comments section, which you can get to by clicking on the permalink, I've copied the emails from the governor's office.
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