Connecticut’s Campaign Financing Rules Clash with Free Speech Rights
November 1, 2024
By: Jayli Esber
Courts must ensure that campaign finance regulations, intended to promote democracy, do not inadvertently threaten the democratic cornerstone of free speech. In Markley v. State Elections Enforcement Commission, decided May 20, 2024, the Connecticut Supreme Court held that the state’s public financing program had upset this balance. The regulations for the program provide that all funds must “directly further” the recipient’s election campaign. The State Elections Enforcement Commission (“SEEC”), which oversees the program, issued an Advisory Opinion explaining that funds could not be used for communications that promote the defeat of or attack a candidate who is not a direct opponent of the recipient.
The plaintiffs were candidates for state legislative offices in the 2014 election cycle who used program funds to issue communications that criticized the governor’s policies. The SEEC fined the plaintiffs for violating the aforementioned regulation. The plaintiffs appealed on the basis of their free speech rights being violated by the state restricting their political speech about a candidate in another race.
In its opinion, the Connecticut Supreme Court first explained that expenditure limitations—like the regulation at issue—are a permissible condition of receipt of public campaign funds. However, as a burden on the content of political speech, they are subject to strict scrutiny.
To survive this standard of review, the restriction must only apply to “express advocacy,” not “issue advocacy.” This distinction is not always clear (“[T]he distinction between discussion of issues and candidates and advocacy of election or defeat of candidates may often dissolve in practical application.”), but the Supreme Court has adhered to the principle that only explicit appeals for votes may be regulated. Buckley v. Valeo, the first Supreme Court case to develop this rule, identified a non-exclusive list of “magic words” that constitute express advocacy—“vote for,” “elect,” “support,” “cast your ballot for,” “Smith for Congress,” “vote against,” “defeat,” and “reject.” The clear rule prevents any chilling effect, resolving any ambiguity about the content of the speech as a permissible discussion of issues. First Amendment rights are protected, then, because the free exchange of ideas (i.e., “issues”) is unencumbered, and the restrictions on campaign pleas are justified by the compelling government interest in improving the electoral process (here, by ensuring that public money is only spent on qualifying campaigns, thereby protecting the state’s fiscal integrity).
According to that legal framework, the dispositive question in Markley was whether “the speech at issue [was] the functional equivalent of campaign speech in the outside race or a rhetorical device intended to communicate where the speaker stands on [an] issue[].” In finding that the communications at issue were merely rhetorical devices, the Connecticut Supreme Court held that the plaintiffs’ First Amendment rights had been violated by the SEEC’s sanctions.
This case is significant in its application of the existing legal framework governing campaign finance regulations to public financing. Though a recipient of public financing voluntarily agrees to its conditions, the court did not consider voluntariness to change the analysis. Markley reaffirms the all-importance of the distinction between express advocacy and issue advocacy. Although one of the communications at issue even used the phrase “change course”—which teeters on the edge of express advocacy—the court held that the communication as a whole could be understood as urging resistance to the incumbent governor’s policies and not the governor himself. Explaining the importance for voters to understand where candidates for the state legislature fall on issues as it relates to other political candidates, the court underscored the policy behind resolving ambiguities as issue advocacy. Markley v. State Elections Enforcement Commission stands for the principle that evolving election landscapes do not justify a departure from established First Amendment guarantees.