Seymour v. Elections Enforcement Commission , 255 Conn. 78 ( 2000 )

MCDONALD, C. J.,

with whom SULLIVAN, J., joins, dissenting. This case involves a one page press release and a two page press release issued by the plaintiffs, Gabriel Seymour and Robert Reid, in which these candidates for the board of selectmen outlined their election platform and their proposals for political reform in the town of Canaan. The two releases were prepared by Seymour on her computer, and she faxed them to three newspapers. The names and telephone numbers of both plaintiffs were printed at the top of these releases. The expenditures incurred by the plaintiffs for the preparation and distribution of the news releases have not been calculated, but the record reflects that they were the cost of three pieces of paper and the ink used in printing the releases, and the cost (if any) of six local telephone calls—mere pennies.

The elections enforcement commission (commission) held that, because the press releases did not contain the words “paid for by” preceding the names and telephone numbers of the plaintiffs, the plaintiffs were “in technical violation” of General Statutes § 9-333w (a).¹ The majority now affirms this ruling.

“Discussion of public issues and debate on the qualifications of candidates are integral to the operation of the system of government established by our Constitution. The First Amendment affords the broadest protection to such political expression in order to assure [the] unfettered interchange of ideas for the bringing about of political and social changes desired by the people. . . . Although First Amendment protections are not confined to the exposition of ideas . . . there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs ... of course includ[ing] discussions of candidates .... This no more than reflects our profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open .... In a republic where the people are sovereign, the ability of the citizenry to make informed choices among candidates for office is essential, for the identities of those who are elected will inevitably shape the course that we follow as a nation. As the Court [previously] observed ... it can hardly be doubted that the constitutional guarantee has its fullest and most urgent application precisely to the conduct of campaigns for political office. Buckley v. Valeo, 424 U.S. 1, 14-15 [96 S. Ct. 612, 46 L. Ed. 2d 659] (1976) (per curiam).” (Citations omitted; internal quotation marks omitted.) McIntyre v. Ohio Elections Commission, 514 U.S. 334, 346-47, 115 S. Ct. 1511, 131 L. Ed. 2d 426 (1995). “When a law burdens core political speech, we apply ‘exacting scrutiny,’ and we uphold the restriction only if it is narrowly tailored to serve an overriding state interest.” Id., 347. As noted by Justice Scalia in his dissent in McIntyre, this standard is ordinarily the “kiss of death.” Id., 380.

The majority finds that four compelling state interests justify infringement upon this core political speech. First is the state’s interest in preventing actual or perceived corruption. See Nixon v. Shrink Missouri Government PAC, 528 U.S. 377, 120 S. Ct. 897, 145 L. Ed. 2d 886 (2000). The evil is presented as postelection favors for the candidate’s supporters. That reason simply does not exist in this case. Here, the candidate is spending her own money and less than $1.

Second, quoting Buckley v. Valeo, supra, 424 U.S. 67-68, the majority finds that the funding source requirement is “ ‘an essential means of gathering the data necessary to detect violations of the contribution limitations . . . .’ ” As required by Buckley v. Valeo supra, 52-54, however, and as provided in General Statutes § 9-333Z (c),² there are no limits on the self-funding of campaigns. In this case there are no contribution limitations. As Buckley again points out, if discovering violations of campaign contributions by the candidate is the function of the funding disclosure, disclosure would not serve any governmental purpose in this case. Id., 76.³

The majority also finds that the provision ensures that the public will know who is the source of the press releases. In this case, the addition of the fact that the candidate herself funded the releases with pennies adds nothing to the public’s ability to evaluate the message of those documents by knowing their source. See Mclntyre v. Ohio Elections Commission, supra, 514 U.S. 334.

Last, the majority finds that the “paid for by” label may prevent libel and fraud. The candidate’s name and address on the press release, however, fully serves this purpose. I fail to see how stating that the candidate herself prepared the release on her computer with her three pieces of paper and faxed them to the newspapers at her own small expense advances this claimed state interest. Simply put, none of the goals claimed by the commission are advanced by the application of the statute in this case.

In the words of the commission itself, this was a “technical violation” that, in ordinary English, translates into action that did not violate the substance of the election law.

The commission endangers vigorous political debate by straining at a gnat. Were it not for the real threat to grass roots political movements with modest resources and their right to reach the public’s ears, this case would be laughable.

History teaches us that a stringent control of political debate on a minute formal point, without any relationship to the dangers of money controlling democratic government, presents a grave threat to our liberties. A history of the use of disclosure laws against civil rights groups, detailed in such cases as N.A.A.C.P. v. Alabama, 357 U.S. 449, 78 S. Ct. 1163, 2 L. Ed. 2d 1488 (1958), illustrates how those in power may attempt to impede vigorous debate of political issues by the application of such laws.

We should remember the words of Benjamin Franklin when he was asked what kind of government we created in 1787. He replied, “A republic, if you can keep it.” Respectfully Quoted (S. Platt ed., 1992) p. 299. Free elections and the vigorous debate essential to them are the essence of our republic. That is why freedom of speech was protected in the first amendment in 1791. Seymour’s seeking public office against entrenched political parties in a small Connecticut town was entitled to protection from undue interference by the commission. I find the statute as applied violated that right.

I respectfully dissent.

1 General Statutes § 9-333w (a) provides: “No individual shall make or incur any expenditure with the cooperation of, at the request or suggestion of, or in consultation with any candidate, candidate committee or candidate’s agent, and no candidate or committee shall make or incur any expenditure for any written, typed or other printed communication which promotes the success or defeat of any candidate’s campaign for nomination at a primary or election or solicits funds to benefit any political party or committee unless such communication bears upon its face the words ‘paid for by’ and the following: (1) In the case of such an individual, the name and address of such individual; (2) in the case of a committee other than a party committee, the name of the committee and its campaign treasurer; or (3) in the case of a party committee, the name of the committee.”

2 General St atutes § 9-333Í (c) provides: “A candidate may make any expenditure permitted by section 9-333Í to aid or promote the success of his campaign for nomination or election from his personal funds, or the funds of his immediate family, which for the purposes of this chapter shall consist of the candidate’s spouse and issue. Any such expenditure shall not be deemed a contribution to any committee.”

3 “If the sole function of [the disclosure requirement] were to aid in the enforcement of [the independent expenditure ceiling, which was found to be unconstitutional], it would no longer serve any governmental purpose.” Buckley v. Valeo, supra, 424 U.S. 76.