The Brennan Center for Justice, which was once a friend of voting rights for minor party and independent voters, did most of the legal work of defending the discriminatory Connecticut public funding law in court. On August 28, the Brennan Center issued an angry press release about yesterday’s decision. It says, “This decision by a single judge completely disregards binding constitutional precedent regarding public financing programs – which have been consistently upheld by the Supreme Court and other federal courts.”

The U.S. Supreme Court has only had one case involving public funding, Buckley v Valeo. The decision, released in 1976, upheld federal law that gives political parties general election funding for the presidential campaigns if that party polled at least 5% of the vote in the last presidential election. It also gives general election public funding to new parties that surpass 5%, but immediately after the election is over (so, parties that expect to poll 5% for President are usually able to borrow money on hopes of meeting the goal; John Anderson used this strategy in 1980).

The U.S. Supreme Court upheld the differential in treatment by noting that the general election public funding was only upholding the status quo, because no minor party or independent presidential candidate had won the presidency since before the Civil War, and only once since the Civil War had such a candidate even placed second.

By contrast, the Connecticut law affects candidates for state office. Over 180 non-Republican, non-Democratic nominees for state office (in the 50 states) have been elected in the last 32 years. Connecticut elected an independent Governor in 1990 and an independent U.S. Senator in 2006. Green Party and Working Families Party nominees (who were not also major party nominees) have been elected recently to partisan city office in Connecticut. All of the New England states except Connecticut have minor party or independent state legislators.

The Brennan Center would apparently have people believe that Buckley v Valeo was intended to make it possible for governments to discriminate against minor party and independent candidates, even in elections in which those candidates sometimes do win. The press release also ignores the fact that the U.S. Supreme Court ruled in Cook v Gralike that the Constitution forbids the government from discriminating for or against any candidates for Congress. The press release also ignores the fact that Arizona and Maine public funding programs do not discriminate, and that the bills for public funding of Congressional candidates, S752 and HR 1826, do not discriminate. Nor does the Brennan Center mention the Helsinki Accords, in which the United States pledged not to discriminate for or against any parties or candidates. If Justice William Brennan were alive today, he would be disappointed in the Brennan Center.

Brett McClafferty, a 21-year-old who wishes to run for Mayor of Streetsboro, Ohio, says he will sue to overturn the charter provision that says Mayors must be at least 23 years old. See this story. Thanks to Carter Momberger for the link.

In Clements v Fashing, in 1982, the U.S. Supreme Court said in a 4-4-1 decision that there is no constitutional right to be a candidate. The 6th circuit had struck down other age limits on candidacy during the early 1970’s, but the current case law is against a challenge of this kind.

On August 27, U.S. District Court Judge Stefan Underhill, a Clinton appointee, held that Connecticut’s public funding law for candidates is so discriminatory in favor of the two major parties, and against all other parties and candidates, that it is unconstitutional in its entirety. The opinion is 138 pages long. A link to the decision is found in this news story from Connecticut News Junkie. Thanks to Ken Krayeske for this news. The case is Green Party of Ct. v Garfield, 3:06cv1030. The Libertarian Party is a co-plaintiff.

Connecticut’s public funding law was passed in 2006 and used for the first time in 2008. Members of parties that polled 20% of the vote in the last election are entitled to public funding if they receive a certain number of qualifying contributions. Others must also obtain the qualifying contributions, but they need to submit a very large number of signatures, in addition.

The decision summarizes the problems with the law on page 71: “The CEP (Citizens Election Program) enhances the relative strength of major party candidates in ways that represent a severe burden on the political opportunity of minor party candidates for the following reasons: (1) it provides participating major party candidates public funding at windfall levels, well beyond what most major party candidates would typically be able to raise on their own from private fundraising sources; (2) it permits major party candidates who are as equally ‘hopeless’ as minor party candidates in many districts to become eligible for full funding without first requiring such hopeless major party candidates to make the same threshold showing of public support required of minor party candidates through the additional qualifying criteria; (3) the additional qualifying criteria for minor party candidates are nearly impossible to achieve, thus ensuring that minor party candidates will only very rarely qualify for the ‘enhancing’ benefits made available by CEP participation; and (4) in the event a minor party candidate does qualify for partial CEP funding, it handicaps that participating minor party candidate by automatically granting full funding to his or her participating major party opponent, and by prohibiting the partially-funded minor party candidate from raising private contributions, up to the full grant amount, in increments greater than $100.”