Appeal from a September 2, 2009 judgment of the United States District Court for the District of Connecticut (Stefan R. Underhill, Judge). After a bench trial, the District Court determined that Connecticut's Citizen Election Program (CEP), a statutory scheme providing public funds for candidates running for state office, violates the First and Fourteenth Amendments to the United States Constitution. We reverse the District Court with respect to one count, applying the standard set forth in Buckley v. Valeo, 424 U.S. 1, 94-96 (1976), and concluding that the CEP does not unconstitutionally discriminate against minor-party candidates. We affirm the District Court with respect to two other counts, holding that the CEP's so-called "trigger provisions" violate the First Amendment in a manner similar to the law struck down in Davis v. Federal Election Commission, 128 S.Ct. 2759 (2008). The District Court disposed of an additional count in a partial final judgment entered February 11, 2009. We address an appeal of the February 11, 2009 partial judgment in a separately filed opinion.
Judge Kearse dissents in part in a separate opinion.
The opinion of the court was delivered by: JOSÉ A. Cabranes, Circuit Judge
Before KEARSE, CABRANES, and HALL, Circuit Judges.
This is the first of two opinions in which we consider a constitutional challenge to certain provisions of Connecticut's Campaign Finance Reform Act (CFRA). The CFRA, enacted in 2005, represents a comprehensive effort by the Connecticut General Assembly to change the way that campaigns for state office in Connecticut are financed. We consider here a challenge to the Citizens Election Program (CEP), a part of the CFRA that provides public money to candidates running for state office. In our second opinion, which we file separately, we consider a constitutional challenge to restrictions imposed by the CFRA on campaign contributions (and the solicitation of campaign contributions) by state contractors, lobbyists, and their families. See Green Party of Conn. v. Garfield, No. 09-0599-cv(L), __ F.3d __ (2d Cir. July 13, 2010).
After a bench trial, the United States District Court for the District of Connecticut (Stefan R. Underhill, Judge) ruled, in part, that the CEP violated the First Amendment and the Equal Protection Clause of the Fourteenth Amendment by invidiously discriminating against so-called minor political parties and their candidates. See Green Party of Conn. v. Garfield, 648 F. Supp. 2d 298 (D. Conn. 2009) ("Green Party II"). We reverse that part of the District Court's judgment and hold that the CEP does not, on this record, invidiously discriminate against minor parties and their candidates.
The District Court also ruled that certain discrete components of the CEP-its so-called "trigger provisions," which include the CEP's "excess expenditure provision" and "independent expenditure provision"-violate the First Amendment by impermissibly restricting the right of candidates and other individuals and organizations to spend their own funds on campaign speech. We affirm that part of the District Court's judgment because we agree that the CEP's trigger provisions violate the First Amendment.
We first describe the history of the CEP. We then outline its provisions and briefly recount the procedural history of this action.
I. The History of the CEP
The CFRA-which includes the CEP-was passed in response to several corruption scandals in Connecticut. Id. at 306-07. The most widely publicized of the scandals involved Connecticut's former governor, John Rowland. In 2004, Rowland was accused of accepting over $100,000 worth of gifts and services from state contractors, including vacations, flights on a private jet, and renovations to his lake cottage. Rowland accepted the gifts, it was alleged, in exchange for assisting the contractors in securing lucrative state contracts. Rowland resigned amidst the allegations, and in 2005 pleaded guilty-along with two aides and several contractors-to federal charges in connection with the scandal. Rowland was fined and sentenced to a year and a day in federal prison. See id. at 307.
Sadly, the ignominy of public corruption was not limited to Rowland. As the District Court discussed in detail, the "Rowland scandal was but one of the many corruption scandals involving elected officials in state and local government that helped earn the state the nickname 'Corrupticut.'" See id. at 307-08 (cataloging the scandals); see also id. at 307 & n.9 (discussing the decline of the reputation of Connecticut's state government).
It was in the wake of those scandals that Connecticut lawmakers resolved to enact "expansive campaign finance reforms." Id. at 309. In the summer of 2005, Governor M. Jodi Rell established the Campaign Finance Reform Working Group (the "Working Group"), a collection of six state representatives and six state senators who were charged with drafting a new campaign finance reform law. After holding televised hearings for three months, the Working Group proposed an expansive bill, much of which would be incorporated into the final version of the CFRA. See id. at 309-10.
In the fall of 2005, Governor Rell called a special session of the General Assembly for the sole purpose of considering the Working Group's proposed bill. After a month of debate, the General Assembly passed the CFRA, and Governor Rell signed it into law. See id. at 300-11. As the District Court set forth in detail, several contemporaneous statements from General Assembly members, as well as Governor Rell, explain that the CFRA was passed "to combat actual and perceived corruption in state government." Id. at 311.
Much of the CFRA went into effect on January 1, 2006, but "2008 marked the first election cycle with candidates participating in the CEP public financing scheme." Id. at 330; see also Conn. Gen. Stat. § 9-702(a) (providing that the CEP becomes effective for the legislative elections in 2008 and for the statewide elections in 2010). Before it went into effect, the CEP was twice amended. See Green Party II, 648 F. Supp. 2d at 311, 319-20.
II. The Provisions of the CEP
The CEP is a complicated statutory scheme, see Conn. Gen. Stat. § 9-702 et seq., and the District Court took great care in explaining each of its provisions. See Green Party II, 648 F. Supp. 2d. at 311-20. We describe only those provisions of the CEP that are relevant to our decision here.
A. Qualification Criteria
Candidates qualify for CEP funding by satisfying one of two types of qualifying criteria-one type for "major party" candidates and one type (with two subtypes) for "minor party" candidates. Under what we will refer to as the CEP's "statewide qualifying criteria," candidates qualify for CEP funding if they are running on the ticket of a major party. See Conn. Gen. Stat. § 9- 702(a). A "major party" is defined by the CEP as a party that either (a) had a candidate for governor in the last election who received at least 20% of the vote, or (b) has as members at least 20% of the registered voters in the state. See id. § 9-372(5). There are, and have been for some time, only two parties that have achieved "major party" status in Connecticut: the Republican Party and the Democratic Party. Green Party II, 648 F. Supp. 2d at 311.
For candidates who are not running on the ticket of a major party-that is, for candidates who are running on the ticket of a minor party or who have no party affiliation-there are alternative ways of qualifying for CEP funding. Under what we will refer to as the CEP's "singleelection qualifying criteria," a minor-party candidate can qualify for funding in a specific race if a member of his or her party achieved a certain threshold percentage of the vote in the same race in the last election. See Conn. Gen. Stat. § 9-705(c)(1), (g)(1). A minor-party candidate can qualify for a full grant of CEP funding if a member of his or her party received 20% of the vote in the same race in the last election; a candidate can qualify for two-thirds of the full amount if a member of his or her party received 15% of the vote in the same race in the last election; and a candidate can qualify for one-third of the full amount if a member of his or her party received 10% of the vote in the same race in the last election. See id.
Under what we will refer to as the "petitioning criteria," minor-party candidates can also qualify for CEP funding by collecting a certain number of signatures of those eligible to vote in the race in which they are running. A minor-party candidate can receive a full CEP grant if he or she collects a number of eligible signatures equal to 20% of the votes cast in the same race in the last election; the candidate can receive two-thirds of the full amount if he or she collects a number of eligible signatures equal to 15% of the votes cast in the same race in the last election; and the candidate can receive one-third of the full amount if he or she collects a number of eligible signatures equal to 10% of the votes cast in the same race in the last election. See id. § 9-705(c)(2), (g)(2).
Finally, all candidates-whether they qualify under the statewide criteria, the single-election criteria, or the petitioning criteria-must raise a specified amount of money through small "qualifying contributions" of $100 or less. See id. § 9-704. The required amount that candidates must raise varies depending on the office sought: candidates for governor, for instance, must raise $250,000 in qualifying contributions, whereas candidates for state representative must raise $5,000 in qualifying contributions. Id. § 9-704(a)(1), (4). Otherwise-qualified candidates do not receive CEP funding until they have raised the required qualifying contributions.
Once a candidate qualifies for public funds under the CEP, the amount of public money that he or she receives is determined by the CEP's "distribution formulae."
1. Primary Election Grants
Candidates seeking the endorsement of a major party must run in primary elections that are governed by state law. Those candidates receive CEP funding for the primary election in the following amounts: candidates for governor receive $1.25 million; candidates for other statewide offices receive $375,000; candidates for the state senate receive $35,000; and candidates for the state house of representatives receive $10,000. Id. § 9-705(a)(1), (b)(1), (e)(1), (f)(1). Like all CEP grants, those amounts will, in the future, be adjusted for inflation. Id. § 9-705(d), (h).
A candidate running for the General Assembly receives more money for the primary election if the election takes place in a district that is considered "one-party dominant" and the candidate is a member of the "dominant" party. (As discussed in greater detail below, we will also refer to "oneparty dominant" districts as "safe" districts.) A "one-party dominant" district is defined as a district in which there is a difference of twenty percentage points or more between the number of registered voters for the two major parties. For example, if 55% of the voters in a district were registered Democrats and 35% of the voters were registered Republicans (with 10% unaffiliated or registered with a minor party), there would be a twenty-percentage-point difference in the number of Democratic and Republican voters, and the candidates running in the Democratic primary would receive extra money: the grant for the Democratic candidate for the state senate would increase to $75,000, and the grant for the Democratic candidate for the state house of representatives would increase to $25,000. See id. § 9-705(e)(1)(A), (f)(1)(A).
Currently, no minor party in Connecticut selects its candidates by means of primary elections, but defendants contend that, if a minor party were to hold primary elections, that party's candidates would be eligible for CEP funding. See Green Party II, 648 F. Supp. 2d at 312 n.16.
2. General Election Grants
For the general election, the CEP provides the following "full" grants: candidates for governor receive $3 million; candidates for other statewide offices receive $750,000; candidates for the Connecticut Senate receive $85,000; and candidates for the Connecticut House of Representatives receive $25,000. See Conn. Gen. Stat. § 9-705(a)(2), (b)(2), (e)(2), (f)(2). Those full grants may be reduced in certain circumstances. For instance, if a major-party candidate is running unopposed, the CEP grant is reduced to 30% of the full amount. See id. § 9-705(j)(3). If a major-party candidate has no major-party competitor but is running against a minor-party candidate who has not qualified for (or accepted) CEP funding, the major-party candidate receives 60% of the full amount. See id. § 9-705(j)(4). If a major-party candidate is running against a minor-party candidate who has, in fact, qualified for CEP funding (or if the minorparty candidate has raised or spent non-public funds equal to the amount of funding the candidate would have received under the CEP), the major-party candidate receives the full grant. See id.
By participating in the CEP and accepting public funds, candidates agree to accept certain limits on the total amount of money they may spend on their campaigns. In essence, candidates that participate in the CEP may spend only the amount they receive in public funds, plus the amount they raise through the required "qualifying contributions." See Conn. Gen. Stat. § 9-702(c). Participating candidates are also permitted to spend a small amount of their own personal funds in certain circumstances. See id. §§ 9-702(c), 9-710(c).
Finally, under the CEP's so-called "trigger provisions," candidates receive additional funding when certain conditions are triggered. There are two trigger provisions: the "excess expenditure" provision and the "independent expenditure" provision.
The District Court concisely explained the excess expenditure provision: The CEP provides matching funds for participating candidates who are outspent by a non-participating opponent-who is not bound by any expenditure limit-in the primary or the general election ("excess expenditure trigger"). Conn. Gen. Stat. § 9-713. If a non-participating candidate receives contributions or spends more than an amount equal to the participating candidate's expenditure limit, then the participating candidate is eligible to receive up to four additional grants, each worth 25% of the full grant. Id. The excess expenditure grants are distributed whenever the non-participating candidate receives contributions or makes expenditures exceeding 100%, 125%, 150%, and 175% of the expenditure limit for that particular office. Green Party II, 648 F. Supp. 2d at 315-16.
The independent expenditure provision is similar to the excess expenditure provision, but it applies to private individuals and organizations who make independent expenditures in support of a candidate for office. Again, the District Court concisely explained this provision:
The CEP also contains a trigger provision tied to independent expenditures made by non-candidate individuals and political advocacy groups . . . . Conn. Gen. Stat. § 9-714. A qualifying independent expenditure is "an expenditure that is made without the consent, knowing participation, or consultation of, a candidate or agent of the candidate committee and is not a coordinated expenditure," id. § 9-601(18), and that is made "with the intent to promote the defeat of a participating candidate." Id. § 9-714(a). Matching funds under this provision are triggered when non-candidate individuals or groups make independent expenditures advocating the defeat of a participating candidate, that in the aggregate, and when combined with the spending of the opposing non-participating candidates in that race, exceed the CEP grant amount. Id. § 9-714(c)(2). Funds are distributed to the participating candidate on a dollar-per-dollar basis to match the amount of the independent expenditure(s) in excess of the full grant amount. Id. § 9-714(a).
Notably, independent expenditures made in support of a candidate (without expressly advocating the defeat of an opponent) do not count towards the independent expenditure trigger, meaning individuals and groups are entitled to make unlimited independent expenditures in support of a candidate without triggering CEP matching funds for that candidate's opponents. See generally id. § 9-714[.] Id. at 316.
Plaintiffs-appellees ("plaintiffs") brought this action in 2006 claiming that certain provisions of the CFRA (including the CEP) violated the First and Fourteenth Amendments to the United States Constitution.
Plaintiffs include two minor parties operating in Connecticut: the Green Party of Connecticut and the Libertarian Party of Connecticut. Plaintiffs also include several Connecticutbased lobbyists and state contractors, as well as Michael DeRosa, a member of the Green Party who has run, in the past, for the state senate and for Secretary of the State on the Green Party ticket. See Green Party II, 648 F. Supp. 2d at 302-06; J.A. 49-52 (Compl. ¶¶ 10-17).*fn2
Defendants-appellants ("defendants") include Jeffrey Garfield, who is named in his official capacity as the Executive Director and General Counsel of the State Elections Enforcement Commission, and Richard Blumenthal, who is named in his official capacity as the Attorney General of the State of Connecticut. See Green Party II, 648 F. Supp. 2d at 306; J.A. 52 (Compl. ¶¶ 18-19).
The parties in this action also include several individuals and entities who successfully moved to intervene as defendants. The intervenor-defendants-appellants include three former major-party candidates for state office and two advocacy groups: Connecticut Common Cause and Connecticut Citizens Action Group. See Green Party II, 648 F. Supp. 2d at 306. The intervenor-defendants defend the constitutionality of the CEP.
Plaintiffs have organized their claims into five counts.*fn3 In Count One, plaintiffs claim that the CEP's qualification criteria and distribution formulae, Conn. Gen. Stat. §§ 9-702(b), 704-05, violate the First Amendment and the Equal Protection Clause of the Fourteenth Amendment by invidiously "discriminat[ing]" against minor parties and their candidates. See J.A. 66 (Compl. ¶ 53). In Counts Two and Three, plaintiffs assert First Amendment challenges to the CEP's excess expenditure provision, Conn. Gen. Stat. § 9-713 (Count Two), and the CEP's independent expenditure provision, id. § 9-714 (Count Three). See J.A. 66-67 (Compl. ¶¶ 54-55).
In Counts Four and Five, plaintiffs assert First Amendment challenges to aspects of the CFRA that do not involve the CEP. In Count Four, plaintiffs challenge the CFRA's bans on contributions (and the solicitation of contributions) by state contractors, lobbyists, and their families. Conn. Gen. Stat. §§ 9-610(g)(h), 9-612(g). In Count Five, plaintiffs challenge disclosure requirements imposed by the CFRA on state contractors. Id. § 9-612(h)(2); see J.A. 67 (Compl. ¶¶ 56-57).
This opinion addresses Counts One, Two, and Three. Our second, separately filed opinion addresses Count Four. Plaintiffs have not pursued Count Five in these appeals; thus we do not address it.
C. Proceedings in the District Court
The District Court disposed of plaintiffs' claims by means of two separate judgments. The District Court first granted summary judgment for defendants on Count Four, holding that the CFRA's contribution and solicitation bans did not violate the First Amendment. See Green Party of Conn. v. Garfield, 590 F. Supp. 2d 288 (D. Conn. 2008) ("Green Party I"). On February 11, 2009, the District Court entered a partial final judgment for defendants with respect to Count Four. See Fed. R. Civ. P. 54(b). Plaintiffs filed a timely appeal of that partial final judgment (2d Cir. Docket No. 09-0599-cv(L)), which we address in our separately filed opinion.
The District Court then held a bench trial and, at the end of the trial, granted judgment to plaintiffs on the remaining counts-Counts One, Two, and Three. See Green Party II, 648 F. Supp. 2d 298. With respect to Count One, the District Court determined that "the CEP impose[d] an unconstitutional, discriminatory burden on minor party candidates' First Amendment-protected right to political opportunity." Id. at 300. With respect to Counts Two and Three, the District Court "conclude[d] that the CEP's excess expenditure and independent expenditure provisions . . . unconstitutionally burden[ed] the plaintiffs' exercise of their First Amendment rights." Id. at 302.
Accordingly, in a September 9, 2009 final judgment, the District Court declared the CEP unconstitutional and entered a permanent injunction prohibiting defendants from enforcing each of the CEP's provisions. See id. at 374. The District Court then stayed the injunction pending this appeal. See Green Party of Conn. v. Garfield, No. 3:06-cv-01030, Docket Entry No. 399 (D. Conn. Sept. 29, 2009).
Defendants filed a timely appeal of the District Court's September 9, 2009 judgment on Counts One, Two, and Three, and we address that appeal in this opinion.
"We review the district court's findings of fact after a bench trial for clear error and its conclusions of law de novo." Arch Ins. Co. v. Precision Stone, Inc., 584 F.3d 33, 38-39 (2d Cir. 2009) (quotation marks omitted). There were, in this case, very few factual disputes for the District Court to resolve at trial. Instead, much of the record in this case consisted of undisputed facts, and in any event, nearly all of the District Court's assessment of plaintiffs' claims involved either pure issues of law or the "application of . . . facts to draw conclusions of law." Scribner v. Summers, 84 F.3d 554, 557 (2d Cir. 1996). We therefore review much of the District Court's analysis de novo. See id. ("The district court's application of . . . facts to draw conclusions of law . . . is subject to de novo appellate review." (citing Travellers Int'l, A.G. v. Trans World Airlines, Inc., 41 F.3d 1570, 1575 (2d Cir. 1994))); see also Bose Corp. v. Consumers Union, 466 U.S. 485, 501 (1984); In re Complaint of Messina, 574 F.3d 119, 128 (2d Cir. 2009); Davis v. N.Y. City Hous. Auth., 278 F.3d 64, 79 (2d Cir. 2002).
COUNT ONE: Whether the CEP Unconstitutionally Discriminates Against Minor- Party Candidates
In Count One, plaintiffs claim that the CEP violates the First Amendment and the Equal Protection Clause of the Fourteenth Amendment by invidiously "discriminat[ing]" against minorparty candidates. See J.A. 66 (Compl. ¶ 53). Plaintiffs' challenge is focused on the CEP's "qualification criteria," which are the criteria by which candidates qualify to receive CEP funding, as well as the CEP's "distribution formulae," which are the formulae that establish the amount of money that the CEP provides to participating candidates. See id. According to plaintiffs, the CEP's qualifying criteria and distribution formulae violate the Constitution because they impermissibly burden the "political opportunity" of minor-party candidates. See Buckley v. Valeo, 4 ...