Amicus Curiae Brief — Arizona Free Enterprise Club's Freedom Club PAC v. Bennett

Nos. 10-238, 10-239

Sn The

Supreme Court of the Gnited States

ARIZONA FREE ENTERPRISE CLUB’S

FREEDOM CLUB PAC, et ai.,

Petitioners,

Vv.

KEN BENNETT, et al.,

Respondents.

o

JOHN MCCOMMISH, et al.,

Petitioners,

v.

KEN BENNETT, et a/.,

Respondents.

¢

On Writs Of Certiorari To The

United States Court Of Appeals

For The Ninth Circuit

o

BRIEF OF THE YANKEE INSTITUTE \

FOR PUBLIC POLICY AS AMICUS CURIAE

IN SUPPORT OF PETITIONERS

r

PETER J. MARTIN* JUSTIN R. CLARK

HINCKLEY, ALLEN & BLACKWELL, DAVIS, &

SNYDER LLP SPADACCINI LLC

20 Church Street 158 East Center Street

Hartford, CT 06107 Manchester, CT 06046

Tel. 860-331-2726 Tel. 860-432-0676

Fax. 860-331-2727 Fax. 860-432-2926

pmartin@haslaw.com JClark@BDS-Law.com

*Counsel of Record

Counsel for Amicus Curiae,

The Yankee Institute for Public Policy

——

COCKLE LAW BRIEF PRINTING CO (800) 225-6964

OR CALL COLLECT (402) 342-2831

Ron

QUESTIONS PRESENTED FOR REVIEW

¥

Whether Ciftzens United vo Federal Election

Comm'n, 1380 S.Ct. S76 (2010), and Davis vo. Federal

Election Comm'n, 128 S.Ct. 2759 (2008), require

this Court to strike down Anmzona’s matching funds

trigger under the First and Fourteenth Amendments

because it penalizes and deters free speech by forcing

privately-finmanced candidates and their supporters

to finance the dissemination of hostile political

speech whenever they raise or spend private money,

or when independent expenditures are made, above :

“spending hmit.”

‘)

~~.

Whether Citizens United and Davis require this

Court to strike down Arizona’s matehing tunds trigger

under the First and Fourteenth Amendments because

it regulates campaign financing in order to equahze

“influence” and financial resources among competing

candidates and interest groups, rather than to ad-

vance directly a compelling state interest in the least

restrictive manner.

il

TABLE OF CONTENTS

Pave

QUESTIONS PRESEN TED FOR REVIEW \

TABLE OF CONTENTS |...

TABLE OF AUTHORLPLIES bei 1V

AMICUS CURIARE BRIEF OF TILE YANKEE

INSTITUTE FOR PUBLIC POLICY. : l

IDENTITY AND INTEREST OF AMICUS

CURIAE .. l

SUMMARY OF ARGUMENT 2

ARGUMENT... ree ements 3

lL THIS COURT SHOULD STRIKE DOWN

THE ARIZONA TRIGGERED MATCHING

FUNDS PROVISIONS BECAUSE THEY

VIOLATE THE FIRST AND FOURTEENTH

AMENDMENTS OF THE CONSTITUTION

BY UNCONSTITUTIONALLY CLULLING

PROTECTED FREE SPEECH. ees 3

A. The Connecticut's Trgyered Matching

Funds Provisions and Their Chilling Et

fect on the 2010 Primary Elections 4

lL The Citizens’ Election Program. 5

2. The Green Party Litigation ..... 9

3. The 2010 Primary Elections ........ 10

Se: AIRE nrere marci ne ony Pen totaer 14

Mt

TABLE OF CONTENTS — Continued

Payre

Bo Arizona’s and Connecticut's Triggered

Matching Funds Provisions Are Un-

constitutional Under Davis Is

ete BRS eee Te = nie Wedicacen~ 7 ae

APPENDIN

AtM®davit of dustin Clark App. 1

Atidavit of Ro Nelson “Oo” Grebe App 9

iv

TABLE OF AUTHORITIES

Pagre

FEDERAL CASES

Crreens United vo Federal Election Comon'n,

IOS Crt STH CLOTO) t

Davis v. Federal Klection Cormonin, 128 So ct

2759 (QOS) PRINSIIN

Folev cv. State EFlections Enforcement Commis

ston, No &10ev LO9t, LATA US. Dist) LEXIS

1744.0) Conn. dal 16, 2010) 12, 13

Folew vo. State Elections Enforcement Commis:

ston, 2YF Conn. 764 (LOTO) IZ, 13, 15

Green Party of Conn. vo Garfield, 648 F Supp. 2d

298 (DD. Conn. 2009) a

Green Party of Conn. vo Garysield, Nos. 09-3760

evi hd, OX-S94ATCCON), VOTO LS) App LENIS

14286 (2rd Cir dul, 18, 20d) PUISSIIMN

McComish vo Bennett, GOS F Sd 720 (Mh Cir

VOTO) 1a

STATUTES

Arnvona Citizens Clean Elections Act. ARS

S$ 1LO-N410 ef seg 6. 4

CONN. GEN. STAT. $$ 9-372 ef seg 11

CONN. GEN STAT. §$ 9-610 1?

CONN. GEN. Star. $ 9-612 17

CONN. GEN. Star. $$ 9 TOO ef sev t

{7.9NN

CONN

CONN

CONN

CONN

CONN

CONN

OTrHeR AUTHORITIES

TABLE OF AUTHORITIES

GEN

GEN

GEN

GEN

GEN

Crt N

CiEN

US. Const

US. Const

2010 Conn. Acts 10-2 (Rey Sess |

Supreme Court Rule dd.)

STAT

Srar

SUAT

Srar

STAtr

SrAl

STAT

SI SL Sh VL SL

S44.

0.

amend. |

amend NIV

Continued

2.3

~~

l

AMICUS CURIAE BRIEF OF THE

YANKEE INSTITUTE FOR PUBLIC POLICY

The Yankee Institute tor Publi Poheyw OYankee

Institute’), on behalf of itself and ats members, sub

mits this arreous curiae brnef in support of the Pets

tioners Pursuant to Supreme Court Rule 37 Sc), this

amicus curiae bnetis filed with the consent of all the

parties

IDENTITY AND INTEREST

OF AMICUS CURIAE

The Yankee Institute is a nonpartisan educational

and research group organived in the L9YS80s under the

laws of the State of Connecticut. The Yankee Insto-

tutes core mission is to promote economic opportu

mitvoin Connectrenut

The Yankee Institute has over SOQ) members

most of whom reside in and are taxpavers of the State

of Connecticut Tt the Ninth Circuits decision as

affirmed and Arizona's trutzered matching funds pro

Visions are upheld as constitutional, mis hkelv that

such a decision will pave the way for the Connecticut

‘

All parties have issued blanket consents to the filing of

amucus cartae brets in support of ether party or neither parts

The Yankee Institute affirms that no counsel fer a party au-

thonad this bmet in whole or in part and that no party, person of

enluty made a monetary contmbution specifically for Che prepa

ration or submission of this bret

leynslature to reenact similar triggered matching funds

provisions im Connecticut's campaign finance law,

thereby increasing: the scope of government involve

ment in elections and the amount of Caxpaver dollars

that are used to fund pelitical campaigns and hostile

political speech The Yankee Institute and its mem,

bers fundamentally oppose such a law and have an

Interest in the outcome of this case Therefore, the

Yankee Institute respectfully submits this) aries

curtae brefin support of the Petitioners

—_-———--—- @

SUMMARY OF ARGUMENT

The Arnvona triggered matching funds provistons

at issue in this appeal impose an unconstitational

burden on the exercise of free speech rushts protected

by the First and Fourteenth Amendments of the

Constitution and, theretore, should be struck down

By upholding Arivona’s (rigger provisions, the United

States Court of Appeals tor the Ninth Cireauit detied

this Court's holding in Davis co Federal Election

Common, LSS Cr 2758 (LAOS), and the holdings of

other Cireuits that have tollowed Dacrs. inelading the

Second Cireuit which recently held that Connecticut's

supplemental matching funds provistons, lke Ar-

gona’s, unconstitutionally chilled political speech by

forcing privately financed candidates and their sup

porters to finance the dissemination of hostile po-

litical speech whenever they raise or spend private

monev above certain threshold limits. The 2010

gubernatorial oproumary elections im Connecticut

3

demonstrated how these provistons, in practiee, chill

and deter constitutionally protected speech and

reduce political discourse by causing: candidates to

reduce the amount that they would otherwise raise or

spend on their campaigns The Connecticut triggered

matching funds provisions are similar to the Arvona

provisions at issue in this appeal Therefore, and in

accordance with Dacrs, this Court should strike down

Anvona’s triggered matching funds provisions as un

constitutionally burdening First Amendment political

speech

ARGUMENT

lL THIS COURT SHOULD STRIKE DOWN

THE ARIZONA TRIGGERED MATCHING

FUNDS PROVISIONS BECAUSE THEY

VIOLATE THE FIRST AND FOURTEENTH

AMENDMENTS OF THE CONSTITUTION

BY UNCONSTITUTIONALLY CHILLING

PROTECTED FREE SPEECH.

The Umited States Court of Appeals for the Ninth

Cireunt defied Dacis when it upheld Arizona's trig

gered matching funds provisions as mmpesing only

an insubstantial burden on the exereise of First

Amendment mghts The Ninth Circuits decision 1s

inconsistent with other Circuits that have tollowed

Davis, including the Second Cireuit, which = struck

down Connecticut’s tmygered matching funds provi

sions as unconstitutionally intringing on candidates’

protected campaurn speech More importantly, af

the Ninth Cirewit’s deersion is allowed to stand, then

constitutionally protected speech will be deterred in

Anvona and elsewhere under a trigger matching

funds regime

A. The Connecticut's Triggered Matching

Funds Provisions and Their Chilling

Effect on the 2010 Primary Elections.

One needs not look any further than Connecticut

to see the chilling impact these types of laws have on

speech Having gone through the 2008S and 2010

election evcles with a program similar to Arivona’s -

including taiggered matching funds provisions — the

constitutional rubber met realitw’s road in Connecti

cut’ What the 2010 primary elections in Connecticut

Although in force for the YOOS legnshative elections, the

first statewide races, including: for Governor, under the CEP

occurred ap LOO Im 2010, $27 8 millon was spent trom the

Citizens Election Fund on elections Statewide, 445 candidates

stood for election on the general election ballot and 296 of those |

candidates, or 67. partiapated in the CEP Of the 129 candy |

dates that were in competitive races with spreads of less than

lass only six non participating candidates (o's) won their races

These statisties are avariable on the State Flectrons Fotoroement

Commussion, Last ef Parthiepating and Nonparticipating Candi

dates at hitp wwwet gow sees and the Secretary et State's

Statement of the Vote available at) http) www statementotvote

sots et gov StatementOtVote WebModules ReportsLink Office Atle

ASP

Other statusties of note from the 2010 electrons unclude 8S

statewide candidates participated in the CEP during the pr-

mary elections, 7 statewide candidates partiapated in the CEP.

during the general election, 34 General Assembly primary

(Continued on following: parte)

demonstrated, and what is most troubling to the Yan

kee Institute, is that triggered matching funds provi-

sions, While purporting to increase polhtical discourse,

actually chill political speech in elections bv forcing

privately-financed candidates and their supporters to

finance the dissemination of hostile political speech

whenever they raise or spend private money above

certain threshold limits.

The chilling impact that Connecticut's supple

mental matching funds provisions had on the speech

of candidates for Governor inp Connecticut's 2010

primary elections and their supporters is) recalled

below

1. The Citizens’ Election Program

In 2005, Connecticut enacted the “Citizens’ Flee

tion Program” (CEP) in order to reduce the need for

candidates to fundraise; intuse “clean” money inte the

election process; eliminate the perception that Ing

donors buy influence; leve! the playing field; and open

candidates participated in the CEP, 249 partrerpating cand

dates ran tor the General Assembly in the general election (this

represents 67° > of the general electron General Assembly

candidates!) S4 yeneral election candidates chose not te partici-

pate in the CEP. 6 statewide candidates opted out of the CEP

during the prumary clections, S statewide candidates opted out

for the general election, 84 candidates ter the General Assembly

opted out of the CEP during the yeneral electron) See id

e)

the process to a greater number of candidates.” See

Green Party of Conn. v Garflers, Nos. 09-3760-cvcL),

O9-S941TCCON), 2010 US. App. LEXIS 14286, at **4-6

(2nd Cir. Jul. 13, 2010); CONN. GEN. Srar. $$ 9-700 ef

seq. The CEP was inspired, in part, by the Arizona

Citizens Clean Elections Act, ARS. $$ 16-940 e? seg..

and provides pubhe financing for candidates for lesis-

lative and executive state offices, including Governor.

CONN. GEN. Svar. $8 9-702 and 9-7Q3.

To be entitled to public financing under the CEP.

participating candidates must limit their fundraising

and campaign spending to amounts specified in the

CEP and are required to obtain a specified amount of

“quahfving contributions” based on the office for

which he or she is running.” See id. at $$ 9-702(b) and

9-704. For example, a candidate for Governor must

receive an aggregate of $250,000 of which $225,000 or

more must be contributed by individuals residing in

the state. Jd) at §$9-704tak 1). Upon reaching this

threshold, a participating candidate for Governor

would then be eligible for a public grant of $1.25

million in a primary. Jd. at $ 9-705. A participating

candidate for Governor who won a primary would

then be eligble to receive an additional $3 million

See the State Elections Enforcement Commission webpare

at http) www ct gov seec cwp view asp’a = 8550K g = 432196,

“Qualitving centmbutions” are monetary contributions

of, at most, one hundred dollars from quahfied electers Jd at

$O.704

~1

public grant for the general election campaign, under

the law at the time of the 2010 primaries.”

Like the Arizona Citizens Clean Elections Act,

A.R.S. $$ 16-940 ef seg., when the CEP was enacted it

contained triggered matching funds provisions known

as (1) the Excess Expenditure Trigger Provision,

CONN. GEN. STAT. §$ 9-713; and (2) the Independent

Expenditure Trigger Provision, CONN. GEN. STAT. § 9-

714 therein referred to, together and separately, as

“the triggered matching funds provisions”).” Candi-

dates who participated in the program (“participating

candidates”) received additional public subsidies in

response to funds received or spent by their oppo-

nents who did not participate in the program (“non-

participating candidates”). /d. at § 9-713. The law

also treated any independent expenditures made by a

third party on behalf of a non-participating candidate

as expenditures by the non-participating candidate

for purposes of triggering additional funding for

participating candidates who did not benefit from the

third party independent expenditure.

—

* The grant amount was subsequently tncreased from $3

million to $6 mulhon after the legislature repealed the CEP’s

trigyered matching funds previsions in an effort to circumvent

the Second Circuit’s decision in Green Party. See 2010 Conn.

Acts 10-2 (Reg. Sess).

“ Funds spent under the CEP © including the triggered

matching funds provisions — are public monies distributed from

a state fund known as the Citizens Election Fund. Conn. Gen.

Stat. § 9-701

8

When a non-participating candidate received

contributions or spent more than an amount equal to

the participating candidate’s initial grant amount,

then the participating candidate would be eligible to

receive up to four additional grants, each worth 25%

of the initial grant amount. Conn. GEN. Start. § 9-705.

The triggered matching funds grants would be dis-

tributed whenever the non-participating candidate

received contributions or made expenditures exceed-

ing 100%, 125%, 150% and 175% of the initial grant

amount. 7d. In this way, a participating candidate

could receive as much as $2.5 million in public funds

for the primary elections, and as much as $6 million

in public funds for the general election, if opposed by

a non-participating candidate who spent more than

175% of the participating candidate’s initial grant

amount.

For example, assume that a primary election for

a major party nomination for Governor in Connecti-

cut pitted one participating candidate against one

non-participating candidate. Once the participating

candidate qualified ‘under the CEP by raising

$250,000 as described above, he would receive a $1.25

million grant to run his campaign. Assume that the

non-participating candidate then spent or received

$1,250,001 — one dollar over the $1.25 million grant

amount, the participating candidate would then

receive a supplemental grant of $312,500. The partic-

ipating candidate would then receive an additional

$312,500 once the non-participating candidate spent

or received over $1,562,500. This would continue in

——— a i a le

9

increments of $312,500 until the end of the election or

the participating candidate received a total of $1.25

million in supplemental grants — a total grant to the

participating candidate of $2.5 million. Although

these provisions were eventually struck down,’ they

played a large role in the 2010 primary elections and

chilled political speech and participation in ways that

were inapposite to the stated purpose of the CEP.*

2. The Green Party Litigation

In 2006, well before the 2010 primary elections

and the related litigation that ensued, several plain-

tiffs challenged the CEP on the grounds that the law

was unconstitutional because, inter alia, the trig-

gered matching funds provisions unconstitutionally

burdened the plaintiffs’ First Amendment rights.

Green Party, 2010 U.S. App. LEXIS 14286, at **16-

17. The District Court agreed with the plaintiffs and

struck down the CEP’s triggered matching funds

provisions. Green Party of Conn. v. Garfield, 648

F. Supp. 2d 298 (D. Conn. 2009).

" See Green Party, 2010 U.S. App. LEXIS 14286. A discus-

sion of this case is below in Sections A.2 and B, supra.

* The State Elections Enforcement Commission’s website

states that “by eliminating their reliance on perpetual fund-

raising, 1t allows candidates to focus more on voters during the

run-up to election day, listening to their needs and concerns,

instead of ‘dialing for dollars’ to keep the their campaigns

running, a tradition of many prior election campaigns.” See

http//www.ct.gov/seec/cwp/view.asp?a=3556&q=432 196.

10

The state appealed, and on July 13, 2010 — just

weeks before Connecticut’s hotly-contested guberna-

tormal primary elections —- the United States Court of

Appeals for the Second Circuit affirmed the judgment

declaring unconstitutional the trggered matching

funds provisions and reversed other portions of the

judgment not relevant to the appeal before this

Court. The Second Cireuit held that the triggered

matching funds provisions “imposeld] a substantial

burden on the exercise of the First Amendment right

to use personal funds for campaign speech” and that

“the state had not asserted a compelling state inter-

est in burdening such speech.” Green Party, 2010 U.S.

App. LEXIS 14286, at *74. The Second Circuit agreed

“with the District Court that the triggered matching

funds provisions violate the First Amendment be-

cause they operate in a manner similar to the law

that the Supreme Court struck down in Davis v

Federal Election Commission, 128 8. Ct. 2759, 171

L.. Ed. 2d 737 (2008)." ld. at *77.

These were precisely the burdens taced by non-

participating candidates in the 2010 Connecticut

primary elections tor Governor.

3. The 2010 Primary Elections

In late 2009. Connecticut's sitting governor,

M. Jodi Rell, announced her intention that she would

not seek re-election. Affer the nominating conventions

ll

in May 2O1TOQ, five candidates amony the two major

parties qualified for their respective primaries” Each

would be affected by the CEP and its) tnggered

matching funds in different ways.” The candidates

were: Dannel Malloy, a Democrat, who participated in

the CEP: Ned Lamont. a Democrat, who largely self

financed his campaign and did not participate im the

CEP: Lieutenant Governor Mike Fedele, a Repub-

hean, who participated in the CEP; Tom) Foley,

a Repubhean, who did not participate in the CEP;

R. Nelson “Oz” Griebel. a Republican, who also did

not participate in the CEP The three Repubhean

candidates took very different paths to financing. |

On July 8. 2010, atler qualitving fer and obtain

ing an initial grant of $1.25 million under the CEP,

* There were several other candidates for nomination for

Governor trom both the Republican and Democrate parties whe

failed to qualify for the primary ballot: OF Chese candidates,

several participated in the CEP but were unable to reach the

minimum qualifving amounts

* Although at least two state legislative races mmpheated

the tnggered matching funds previsions, fer purposes of this

bref the Yankee Institute wall focus pmmarivy on the two

gubernatorial races that umpleated these provisions

" The Connecticut Republican Party held its convention for

the purpose of endorsing candidates for numerous statewide

offices, including Governor, on May 21-22, 2010. At the Conven-

tion, the Republican Party endorsed Mr Foley as its candidate

for Governor Lieutenant Gevernor Fedele and Mr Grebel also

each garnered enough suppert at the Convention to quality tor

the Republican primary for Governor See CONN Gen Star $$ o-

gg ee eee

B72 et seg

.

Laeutenant Governor Fedele apphed for $987,500 in

supplemental matching tunds (an amount equal to

Lo of the imtial grant amount) pursuant to the

triggered matching funds provisions. Folevw vo State

Flections Enforcement Comomiusston, No. &8.10ev L091,

2010 US. Dist LEXIS 71744. at *7 UD. Conn. Jul. 16,

2010)) This was based on Mr. Foley's) purported

expenditures above $1.25 million. This appheation —

along with his appheation for the initial grant — led to

extensive htigation involving the propmety of the

grants by the State Elections Fnforcement Commis

sion (SEEC™) and their interpretation of the CEP

statutory scheme

On dulw bi, 2010) - shortly afler the Second

Circuit's ruling in the Green Party htigation and some

four weeks betore the primary elections scheduled

tor August 10, 2010 Lieutenant Governor Fedele

apphed for the remaming supplemental matching

funds in the amount of $312,500. This was triggered

by Mr. Foley expending more than 175° of the initial

grant amount.” Jd. In response, Mr. Foley filed an

* See Folev v State Elections Enforcement Compmission, No

J Wev les), 2010 US) Dist LENIS 71744. at *7 > Conn Jal

16, 2010), Folev vo State Elections Enforcement Comri'n, 297

Conn 764 (2010)

Although the SEFC had determined that the Folev cam

paign eraceeded the threshold limits of the traggered matching

funds provisions entitling bis participating opponent to supple-

mental funds, this issue was decided by the courts in the litiga-

tin surrounding the primary election grants under the CEP

When making decisions about expenditures, the Foley campanm

had a different reading of the triggered matching funds provisions

Continued on tollowing pag:

appheation for a temporary. restraining order and

permanent imgunetion seeking to prevent the SEEC

trom issuing the remaining matehing finds because

the United States Court ef Appeals for the Seeond

Cireunt had found the tnggered matching funds

provisions unconstitutional yust davs earher "Ja. at

‘7-8. The Dastret Court) demed the temporary

restraining order notwithstanding that uw found Mr.

Foley would be irreparably harmed by the tmugered

matching funds provisions because “the vigerous

exercise of the right to use personal funds to finance

campaign speech produces fundraising advantages for

opponents ino the competitive context of electoral

polities " Jad at **14-15 coating Darrs, WS S.Ct. at

) beard) b

a ¢ 6 6!

Although the triggered matching funds provisions

had previously been declared unconstitutional, Laeu-

tenant Governor Fedele’s final supplemental grant

in the amount of $812,500 was nonetheless approved

by the SEEC on duly 21, 2010 and he received the

than the SEEC and therefore dhd rot think at had exceeded

these thresholds contrary to the SERC's caterpretation of the

law. Sew Fidev ¢ State Elections Enforcement Commission, 297

Conn at FS4 (L010) This geod tanh dispute was vet settled

until Julw 20, 20710. less than 25 days before the priomary

-

elections Seeid at 764

" The Distnet Court lacked pumsdiction to simply enjoin the

SEFC trom approving matching funds in accordance with the

Second Circuits decision un Groen Party because the Scoond

Crreurt had vet teassue a mandate Ja at "*S.9

a)

monev” Ulumately, the non participating Mr. Foley

edged the participating Lieutenant Governor Fedele

and the non-participating Mr Griebel ino as close

primary

At the same time, the Democratic priumary tea-

tured one participating candidate — Mr. Malley — and

one non-participating candidate — Mr. Lamont. Mr

Malloy qualified for the initial publie grant of $1.25

muhhon and later received triggered matching funds

totaling $125 milhen ino response to spending in

excess of the cap by Mr Lamont.) Mr Malloy, the

parheipating candidate having received $2.5 malhon

in pubhe funds, won the primary

4. The Harm

The outcomes of both primaries were significant

lv influenced — and perhaps determined — byw the

triggered matching funds provisions

Leading up to the award of the CEP grants, Mr

Foley was mindful that any money he spent over

$1.25 millon in the primary would trigger pubhe

>

eve

See minutes ef the SEEC regular meeting on dulv v1

2010 which are avatiable at) http www et prow seec Tit see

JO 10commussronmeetings minutes O72 T2010 pat

Sev minutes of the SEEC regular meetings on June 3,

2010 and June 28, 2010 which are avantable at http) www

ct gow sews Tb sees DO LQoommissionmeetings annutes ABOSL010 pat

hitp. www ct zov seen hb seeo LO lQoomimission meetings minutes

VEL SLIT pal

1

funds supporting hostile speech for his parhierpating

opponent Accordingly, he made diferent decisions

than he would have otherwise made in terms of

whether, when and how much he would spend This

placed a substantial burden on his First Amendment

right to freedom of speech Specifically, each and

every expenditure related to direct and indirect voter

contacts — protected political speech — were reduced

as a result of the triggered matching funds provi-

sions. Clark AY (60 This reduction in expenditures

resulted in less voter contact and, thus, less constitu

tionally protected political speech |

Additionally, as a result of these provisions, care-

ful attention was given to the timing of expenditures

Clark AM €8. The Foley campaign was forced to

make expenditures on television advertising before

the primary period began in order to avoid those

expenditures being counted toward any trigger

Forther, 2010 saw a national political environment with

Many competitive races Thais lead to increased competition for

political talent and, thus, increased salary costs Clark At? {7

As a result of the triugcered matching: funds Provisions. the Foley

CAMpAlN Was forced to spend less on emplovee salames and was

thus less competitive in reeruiting talent te work on the race

and thus engage mo political speech

" ois umportant te note that the tum: of expenditures

was a large part of the litation surrounding the CEP One of

the central issues rated was “whether a candidate partioipating

inthe (CEP! was entithad to supplemental prants fora primary

CAMPURN pursuant to FMF bsae. based upon) centmbutions

received by or expenditures made bv the OPPs ng honparticipat

ing candidate before the pmmarv penod has started mav be

considered ~ Foalev, 297 Conn at 764 C2010)

lo

Clark AY § So The campaign's message was therefore

diluted as it was dehvered further trom the primary

than it otherwise would have been without the trig

gered matching: funds provisions Clark AtY © 9 This

resulted in a more difficult — and closer | primary

than might otherwise have been necessary had Mr

Foley not been deterred from making expenditures

exercising pobtieal speech — at the time he viewed as

optimal Clark Af £9 Not only did the triggered

matching funds provisions alter the course of the

Republican pmmary, they also affected the general

election because the extra pubhe funds were used for

a barrage of negative advertizing, the impact of which

carned over long after the primary Clark Aft © 10

The non - participating, self-financed Democrat,

Mr Lamont, faced a simular dilemma in his primary

campaign. Ulumately Mr Lamont’s spending triggered

$1.25 millon of triggered matching funds which in

turn Were used to fund hostile speech by his oppo

nent, Mr Malloy The participating, publicly tunded

Mr. Mallov would ultimately defeat the non

participating, self financed Mr. Lamont tn the Demo-

cratic primary

Similar harms betell the other non-participating

candidate in the Repubhean primary, Mr Grebe!

This was particularly so because Mr Gmebel did not

raise or spend more than the CEP threshold amounts,

unhke Mr. Foley Moreover, when Mr Foley exceeded

the CEP threshold limits. it triggered puble funds to

go to Lieutenant Governor Fedele leaving Mr. Griebel

further behind both candidates in terms of financal

Ly

resources. Mr. Grebel was not able to sigmificantly

supplement his campaign with personal moneys

Griebel Att §) 6. Additionally, Mr. Grebel’s campaign

was hamstrung by campaign contribution hmuats

imposed by the CEP Griebel AY © 7. These re-

strictions prevented candidates from) raisifg money

from state contractors and lobbyists " CONN. Grn

Srar. $$ 8-010 and 8612. As ao non-participating

candidate, Mr. Gnrebel did not and could not have

raised the money necessary to compete because of

these restrictions and, more iamportantly, because of

the supplemental matching funds provisions. Griebel

AT, © 9

In this way, the CEP has created a coercive

system whereby only participating candidates and

those willing to selffund or raise substantial sums of

private dollars can run for pubhe oMee with any

reasonable hkelrhood of winning. Any other candidate

would tace the “double-whammy” of restrictive con

tribution limits and increased pubhe funding in the

campaign which drives non-participating, —non-

wealthy and non financed candidates from the race

and further deters speech.

* These restrictions were. in large part, struck down by the

United States Court of Appeals for the Socend Crreuit: See Green

Party, 20210 US App LEXIS 142s6, at *74

, ,

is

B. Arizona's and Connecticut's Triggered

Matching Funds Provisions Are Un-

constitutional Under Davis.

In stmking down Connecticut's triggered match

ing funds provisions, the Second Cireuit compared

those provisions to the “Millionaire Amendment” that

this Court struck down in Davis. The Second Circuit

concluded that the triggered matching funds provi-

sions, ke Davis’ “Millionaire Amendment.” caused a

non-participating candidate to “shoulder a special

and significant burden” if the candidate chose to exer-

ctse her First Amendment speech rights because the

more money the non-participating candidate spent

above the intial grant amount, the more money her

we ober pag opponent would receive. Green Party,

2010 US. App. LEXIS 14286, at **S0-S1. In fact, the

Second € Crreunt held that the * ee imposed by the

triggered matehing funds provisions ts “harsher” and,

therefore, more constitutionally objectionable than

Dacis’“Milhonaire Amendment.” /d. at **82-83

Bevond the theoretical analysis espoused in

Green Party, tnggered matching funds provisions hke

Anvona’s have proven unconstitutional in practice as

well as in theory, The 2010 gubernatoral primary

elections in Connecticut demonstrated how these pro

visions deter constitutionally protected speech and re-

duce political discourse by causing non-participating

candidates to reduce the amount that they would

otherwise raise or spend on campaigns because rais

ings or spending above certain threshold limits would

result in their) participating opponents receiving

19

additional tinancing to fund the dissemination of

hostile political speech. These provisions run directly

afoul of Davis and are the same type of provisions

before the Court in the tilled appeal. Accordingly, and

in harmony with Dacrs, the Court should find that

Arizona’s triggered matching funds provisions, lke

Connecticut's, impose an unconstitutional penalty on

First Amendment political speech.~

— ——_____— ¢@ —_____

CONCLUSION

The Yankee Institute, as ariucus curtae, respect-

fully urges this Court to strike down Arizona's trig-

gered matching funds provisions.

Respectfully submitted by Counsel for

The Yankee Institute for Public Poliey,

PETER J. MARTIN* JUSTIN Ro CLARK

HUNCKLEY, ALLEN & BLACKWELL, Davis, &

SNYDER LLP SPADACCINI LLC

20 Church Street 158 East Center Street

Hartford, CT 06107 Manchester, CT 06040

Tel. 860-331-2726 Tel. 860-432-0676

Fax. 860-331-2727 Fax 860-482-2926

pmartineéhaslaw com JIClark@BDS-Law.com

. "> ’

*Counse! of Record

Counsel for Amicus Curtae

* The Second Cireuit found the Ninth Circuit's decision in

MeComush vo Bennett, 6O5 F 3d 720 (oth Cir 2010), unpersua-

sive. Green Party, 2010 US. App. LEXIS 14286, at *83 fn. 19

App. 1

NOS. 10-238, 10-239

IN THE SUPREME COURT

OF THE UNITED STATES

ARIZONA FREE ENTERPRISE CLUB'S

FREEDOM CLUB PAC, et al...

Petitioners,

v.

KEN BENNETT, et al.,

Respondents

JOHN MCCOMMISHL, et al.

Petitioners,

v.

KEN BENNETT, et al.,

Respondents.

AFFIDAVIT OF JUSTIN CLARK

PETER J. MARTIN* JUSTIN R. CLARK

Hinckley, Allen & Blackwell, Davis, &

Snyder LLP Spadacecimi LLC

20 Church Street 158 East Center Street

Hartford, CT 06107 Manchester, CT 06040

Tel. 860-331-2726 Tel. 860-432-0676

Fax. 860-331-2727 Fax. 860-432-2926

pmartin@haslaw.com JClark@BDS-Law.com

*COUNSEL. OF RECORD

Counsel for Amicus Curtae, the Yankee Institute for

Public Poltey

1, Justin Clark, do on oath depose and state as

follows:

App. 2

lL. lam over eighteen (18) years of age and |

believe in the duty and obligations of an oath.

2 | reside in West Hartford, Connecticut and

am registered to vote in the State of Connecticut.

3. IT was the campaign manager for Foley for

Governor, the gubernatorial campaign for Thomas C.

Foley. Mr. Foley won the Republican Party primary

election for governor in 2010 and became the nominee

for that party on August 10, 2010. As campaign

manager I took part in all strategic and tactical

decisions during the campaign, including all decisions

related to spending and strategy regarding campaign

finance.

4. Mr. Foley did not participate in Connecticut's

public financing system known as the Citizens’ Elec-

tion Program (“CEP”).

5. As a non-participating candidate, and with a

participating opponent in the Republican Party

primary election, the campaign was keenly aware of

the triggered matching funds provisions of the CEP,

particularly the Excess Expenditure Trigger Provi-

sion, Conn. Gen. Stat. § 9-713 (the triggered match-

ing funds provisions’).

6. As a result of the triggered matching funds

provisions, each and every expense related to direct

and indirect voter contacts during the primary elec-

tion campaign were reduced during different time

periods of the campaign.

App. 3

7. One particular campaign expense was higher

than normal in 2010. As a result of the national

environment, there was an increased competition for

political talent and thus, increased salary costs.

8. Additionally, as a result of these provisions,

careful attention was given to the timing of expendi-

tures. Due to the trigger dates in the statute, the

campaign was forced to make expenditures on televi-

sion advertising before the primary period began, and

thus avoid those expenditures being counted toward

any trigger.

9. The campaign’s message was therefore di-

luted as it was delivered further from the primary

election than it otherwise would have been with-

out the triggered matching funds provisions. This

resulted in a more difficult primary than might

otherwise have been necessary had Mr. Foley and the

campaign not been deterred from participating in

political speech at the time he and it viewed as opti-

mal.

10. The triggered matching funds provisions

altered the course of the primary election, and

changed the outcome of the general election because

the extra public funds were used for a barrage of

largely negative advertizing, the impact of which

carried over long after the primary..

The foregoing is true, accurate and correct to the

best of my knowledge, information and belief, under

the penalty of perjury.

App. 4

Dated at West Hartford, Connecticut, this 16th

day of January, 2011.

/s/ Justin Clark

Subscribed and sworn to before

me this 16th day of January, 2011.

/s/ Peter J. Martin

Commissioner of the Superior Court

A pp. 5

NOS. 10-238, 10-239

IN THE SUPREME COURT

OF THE UNITED STATES

ARIZONA FREE ENTERPRISE CLUB'S

FREEDOM CLUB PAC, et al...

Petitioners,

~

KEN BENNETT. et al...

Respondents

JOHN MCCOMMISH, et al

Petitioners

"

KEN BENNETT, et al.

PE Pee

Re NPMUTA rifts

AFFIDAVIT OF R. NELSON “OZ” GRIEBEL

PETER J. MARTIN* JUSTIN R. CLARK*

Hinckley, Allen & Blackwell, Davis, &

Snyder LLP Spadaceim LLC

20 Church Street 158 Fast Center Street

Hartford, CT 06107 Manchester, CT 06040

Tel. 860-331-2726 Tel. SG0-432-0676

Fax. 860-331-2727 Fax. 860-432-2926

pmartin@haslaw.com JClarkK@BDS-Law.com

*COUNSFL OF RECORD SCOUNSFL OF RECORD

Counsel for Amicus Curtae, the Yankee Institute for

Pudlie Policy

lL. R. Nelson “Oz” Griebel, do on oath depose and

state as follows:

App 6

1. 1 am over eighteen (1S) vears of age. and 1

beheve in the duty and obligations of an eath

2. 1 reside in Weatogue, Connecticut and am

registered to vote in the State of Connecticut

3. | participated in the Repubhean Party pr

mary election for governor in DOLO

4. 1 did not participate in Connecticut's pubhe

financing system known as the Citizens’ Election

Program (“CEP”)

®& As a non-partiapating candidate with a

Republican primary opponent who was participating

in the CEP. IT was keenly aware of the triggered

matching funds provisions of the CEP. particularly

the Excess Expenditure Trigger Provision, Conn. Gen

Stat. $9-713 Cthe tmggered matching funds provi

sions”)

6. Twas not able to significantly supplement my

campaium with personal money

7. Additionally, my campaign was hamstrung

by campaign contmbution linuts unposed by the CEP

along with harsh consequences for noncompliance

S. These restmehions and the noncompliance

penalties prevented me from raising money from

certam types of state contractors and lobbyists, many

of whom said that they were prepared to provide

financial support but for the prohibition and penal-

lies.

App. ;

9 As a nonparticipant in the CEP and due to

the aforementioned restrictions, T could not and did

not raise the money necessary to compete effectively,

thereby infringing my mghts of political speech as

well as those of individuals prohibited from contrib.

uling

The foregoing iS true, Accurate and correct to the

best of my Knowledge. information, and behef. under

the penalty of perjury

Dated at Hartford. Connecticut, this 14th dav of

January, 2011

s R. Nelson “Oz” Griebe!

Subsernbed and sworn to betore

me this 14th dav of January, 2011

s Nancy L. Marzano

L114 11

NANCY L. MARZANO

NOTARY PUBLIC

MY COMMISSION EXPIRES NOV. 30, 2013