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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0642%3A38

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2010
- **Citation:** 562 U.S. 1060

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0642%3A38. Public record. Not legal advice.