On July 13, the U.S. Court of Appeals ruled 2-1 that the U.S. Constitution permits a state to provide public funding to parties that polled 20% for Governor in the previous gubernatorial election, and not to independent candidates or new political parties unless they submit massive petitions.  The majority upheld Connecticut’s law, in a decision written by Judge Jose Cabranes, a Clinton appointee, and signed by Judge Peter W. Hall, a Bush Jr. appointee.  Judge Amalya Kearse, a Carter appointee, dissented.

The plaintiffs were the Green and Libertarian Parties of Connecticut.  The decision says that strict scrutiny does not apply to this issue.  The decision also says that because the U.S. Supreme Court upheld somewhat discriminatory treatment for minor party and independent candidates for President in 1976 in Buckley v Valeo, anything goes.  The decision does not mention that the federal law upheld in Buckley v Valeo was strictly neutral as to presidential candidates in the primary season.  The federal law allows all presidential candidates to obtain public funding if they raise $5,000 from residents of each of 20 states.  The federal law only discriminated in the general election, limiting general election funding to nominees of parties that had polled 5% of the vote in the preceding presidential election.

One reason the U.S. Supreme Court had upheld discriminatory funding in the general election is that no minor party or independent candidate had managed to even place second since 1912.  By contrast, a minor party nominee, Lowell Weicker, was elected Governor on the “A Connecticut Party” ticket in 1990.  Weicker had testified in this case that if discriminatory public funding had been in place in Connecticut in 1990, he could not have won.  The law would have required him to submit a petition signed by 20% of the last vote cast.  The decision mentions Weicker in only two places.  Footnote 13 on page 33 says “Putting aside the sui generis candidacy of former Governor Lowell Weicker, no minor-party candidate in Connecticut has won any election in recent memory.”  This is erroneous.  The Working Families Party and the Green Party have both won partisan municipal elections in Connecticut for their own nominees (not the cross-endorsed nominees of major parties) in the last few years.

Page 37 also similarly errs when it says, “The only time in recent memory that a minor-party candidate has won an election in Connecticut was the election of Governor Lowell Weicker in 1990.”

The panel also struck down the part of the Connecticut public funding law that is unrelated to discrimination against minor party and independent candidates, and which gives extra public funding to candidates who have well-funded privately-financed opponents.  The 2nd circuit did not determine if this part of the law can be severed from the remainder of the law, and asked the U.S. District Court to make a speedy determination about that.  If the U.S. District Court rules that that part is not severable, then the entire public funding law would be void in any event.  This part of the decision acknowledges in footnote 19 on page 49 that the 9th circuit recently came to a different conclusion about extra public funding for candidates with well-funded privately-funded opponents, but says “we are not persuaded by the Ninth Circuit’s opinion.”

In a separate decision, the same panel also affirmed the lower court’s decision upholding restrictions on the ability of government contractors to make contributions to candidates.  But it struck down such restrictions on members of their family.

Footnote 18 of the 2nd circuit decision on minor party and independent candidates says, on page 42, says, “We acknowledge that winning an election is not the only reason that citizens choose to run for office, and we do not mean to diminish the important role that minor-party candidates play in espousing minority views and shaping public debate.  There is, however, insufficient evidence in the record to show that minor-party candidates need public money to perform that role.”

Footnote 14 on page 33 is perhaps the most amazing part of the decision.  In response to all the evidence that a petition signed by 20% of the last vote is impossible to meet, at least for a statewide candidate, the decision says the petition alternative isn’t even constitutionally required, and that the Connecticut law would be constitutional even if there were no means for a candidate to get public funding, unless that candidate were the nominee of a party that had performed well in the previous election.  But, a new party could not possible have performed well in the previous election, nor could an independent candidate have done so if the candidate were running as an independent for that office for the first time.

The decision cannot even acknowledge that the law does discriminate in favor of the two old major parties.  Every time it uses the word “discrimination” or “discriminate”, the decision puts the word in quotes.  Thanks to Mike de Rosa for the news.  It is likely that this case will be appealed to the U.S. Supreme Court and that the Court would accept this case, although it is also somewhat likely that plaintiffs will ask for rehearing en banc before all the judges of the 2nd circuit, a step that would be taken before any appeal to the U.S. Supreme Court.