The Connecticut Supreme Court unanimously ruled on Monday that the State Elections Enforcement Commission violated the constitutional free speech rights of two Republican candidates, Rob Sampson and Joe Markley, when it fined them for criticizing the Democratic governor, Dannel Malloy, in ads paid for by their publicly funded campaigns in 2014. The court’s decision overturned the $5,000 civil fine against Sampson and the $2,000 penalty against Markley, and could have implications for other states that provide public funding for campaigns.
The commission had determined that Sampson and Markley violated the rules of the state’s Citizens’ Election Program, which provides public funds to campaigns for statewide office and the legislature, when they sent out campaign materials touting how they would fight what they called the bad policies of Malloy. However, the Supreme Court said that the commission went too far when it interpreted the law to mean that Sampson and Markley could not criticize Malloy, who was running for reelection.
The court’s decision cited several decisions by the U.S. Supreme Court and other courts on what limits can be placed on free speech in publicly funded campaigns. The court wrote that the commission “imposed an unconstitutional condition in violation of the first amendment to the extent that it penalized the mention of Governor Malloy’s name in a manner that was not the functional equivalent of speech squarely directed at his reelection campaign.”
The ruling is a victory for free speech advocates and could have implications for other states that provide public funding for campaigns. Charles “Chip” Miller, a senior attorney at the Institute for Free Speech who represented Sampson and Markley, said that the Connecticut case appears to be the first of its kind and could have ramifications in other states if they seek outside guidance on the issue.
“To the extent that you can tie someone to an opposing candidate, you know, I think is extremely relevant now,” Miller said. “You can talk about somebody being a Trump supporter, or a Biden supporter, be it yourself or someone else. Someone can run and they could say, ‘Hey, I’m a Sanders Democrat,’ and that means something. Right?” he said, referring to U.S. Sen. Bernie Sanders, an independent from Vermont who caucuses with the Democrats.
Thirteen states provide some form of public funding to candidates for state offices, according to the National Conference of State Legislatures. Other states that provide public funding for state campaigns, such as Arizona and New York, limit use of the money to the candidate’s own campaign. New York has specific language that bans spending that money to support another candidate.
The Connecticut Elections Enforcement Commission is reviewing the decision and consulting with the Attorney General’s Office to determine what to do next. The state attorney general’s office, which represented the commission in the case, said it was reviewing the court ruling before deciding its next steps.
Markley said that he was pleased with the court’s decision and that he believed it would have implications for other states. “I think that what they were trying to do here in Connecticut was sufficiently outrageous that I doubt that such actions have even been contemplated in other states, because who would push for bans on what I think is such reasonable political communication?” he said.
Sampson also expressed his satisfaction with the court’s decision and said that he felt “vindicated.” He said that he hoped the decision would make it clear to future candidates that they can exercise their free speech rights without fear of retribution.
“In our case, it should have been perfectly reasonable for me to inform my constituents — and voters — that I did not support the policies of the former governor,” Sampson said in a statement posted on social media.
