Full opinion text
RULING ON MOTION TO DISMISS and MOTION FOR JUDGMENT ON THE PLEADINGS STEFAN R. UNDERHILL, District Judge. The Connecticut Legislature has enacted a campaign finance reform law that permits certain qualified candidates to receive public funds to conduct their campaigns. Plaintiffs filed a five-count amended complaint alleging that various of the law’s provisions violate the United States Constitution. Defendants now move to dismiss and for judgment on the pleadings, arguing that the plaintiffs lack standing to bring the challenges set forth in counts two and three, and that counts one, two, and three fail to state a claim upon which relief can be granted. For reasons that follow, defendants’ motions are granted in part and denied in part. 1. Background On June 21, 2004, then Connecticut Governor John G. Rowland resigned after he was accused of improperly accepting tens of thousands of dollars in gifts and services from state contractors in exchange for the award of state contracts. On December 7, 2005, Rowland pled guilty to charges related to the scandal. In response to those, and other recent events in the state’s history, the Connecticut General Assembly passed a new campaign finance reform law, Public Act 05-5 (the “Act”). A. The Act One of the Act’s provisions created the Citizens’ Election Program (“CEP”), a voluntary public financing option for candidates seeking certain elective offices. Before a candidate can receive public funds under the CEP, however, the candidate must meet several requirements, and the requirements depend upon the candidate’s party affiliation. A “major party” is “(A) a party or organization whose candidate for Governor at the last-preceding election for Governor received, under the designation of that political party or organization, at least twenty per cent of the whole number of votes cast for all candidates for Governor, or (B) a political party having, at the last-preceding election for Governor, a number of enrolled members on the active registry list equal to at least twenty per cent of the total number of enrolled members of all political parties on the active registry list in the state.” Conn. Gen.Stat. § 9-872(5). To qualify for CEP funds, all candidates, regardless of party affiliation, must raise a certain number of qualifying contributions in amounts of 100 dollars or less from individuals. Conn. Gen.Stat. §§ 9-702(b), 9-704. The total amount of qualifying contributions that a candidate must raise depends upon the office for which the candidate is running. Id. For major party candidates, there are no additional requirements to receive full public funding. Minor and petitioning party candidates (collectively “minor party candidates”), however, must satisfy at least one of two additional requirements to qualify for public funding. First, a minor party candidate can qualify for public funding by gathering signatures of qualified voters (“petitioning requirements”). Conn. GemStat. § 9-705(c)(2). If a candidate gathers signatures equal to 20 percent or more of the total number of votes cast in the previous election, the candidate is entitled to receive the full public grant for the general election. Id. If the candidate gathers signatures equal to 15 to 20 percent of the total vote in the previous election, the candidate is entitled to receive two-thirds of the full public grant for the general election. Id. If the candidate gathers signatures equal to 10 to 15 percent of the total vote in the previous election, the candidate is entitled to receive one-third of the full public grant for the general election. Id. Second, a minor party candidate can qualify for public funding if the candidate, or another member of her party, received a certain percentage of the vote in the previous general election for the same office (“prior success formula”). If the candidate, or a member of her party, garners 20 percent of the vote in the preceding general election, she is entitled to receive the full public grant for the general election. Conn.' Gen.Stat. §§ 9 — 705(c)(1), (g)(1). If the candidate, or a member of her party, garners 15 to 20 percent of the vote in the preceding general election, she is entitled to receive two-thirds of the full public grant for the general election. Id. If the candidate, or a member of her party, garners 10 to 15 percent of the vote in the preceding general election, she is entitled to receive one-third of the full public grant for the general election. Id. Because it is necessary to show support in a preceding election, this provision, as a practical matter, does not apply to a minor party candidate whose party has not run a relatively successful campaign in the preceding year for the same office. Again, the additional qualifying criteria apply only to minor party candidates; they do not apply to major party candidates. Plaintiffs have alleged that these additional requirements are, as a practical matter, impossible for most, if not all, minor party candidates to satisfy. Minor party candidates, in certain elections, also may be entitled to post-election reimbursements if they achieve a certain level of support. Specifically, minor party candidates running for “Governor, Lieutenant Governor, Attorney General, State Comptroller, Secretary of the State or State Treasurer shall be eligible to receive a supplemental grant from the fund after the general election if ... such candidate received a greater per cent of the whole number of votes cast for all candidates for said office at said election than the per cent of votes utilized by such candidate to obtain a general election campaign grant....” Conn. Gen.Stat. § 9 — 705(c)(3). The level of funding under the CEP depends upon the office sought, as well as party status: qualifying gubernatorial candidates receive 1.25 million dollars for the major party primary and 3 million dollars for the general election, Conn. Gen.Stat. § 9-705(a); qualifying candidates for lieutenant governor, attorney general, state comptroller, secretary of the state, and state treasurer receive 375,000 dollars for the major party primary and 750,000 dollars for the general election, Conn. Gen. Stat. § 9 — 705(b); qualifying candidates for state senate receive either 35,000 dollars or 75,000 dollars for the major party primary, and 85,000 dollars for the general election, Conn. GemStat. § 9 — 705(e); and qualifying candidates for state representative receive either 10,000 dollars or 25,000 dollars for the major party primary, and 25,000 dollars for the general election, Conn. Gen.Stat. § 9 — 705(f). Fully qualified minor party candidates receive the same funds for the general election, but receive no funding for primaries. Minor party candidates who qualify and receive partial grants for the general election, however, may raise and spend additional private funds in order to make up the difference between the partial grant and a full grant. Conn. Gen.Stat. § 9-702(c). Candidates who accept public funding may not accept any private contributions, other than the initial qualifying contributions, and, with a few exceptions, generally may not spend money in excess of the original full public grant. Conn. Gen.Stat. § 9-702. The CEP also contains provisions that provide for the release of additional public funds, in addition to the original full public grant, if the participating candidate is outspent by a nonparticipating candidate or by any other non-candidate or organization (collectively “triggering provisions”). One triggering provision is tied to expenditures made by an opposing candidate who does not accept public funding and is not bound by any expenditure limits. If a nonparticipating candidate spends more than the amount of the full public grant, then the participating candidate is entitled to receive up to four additional grants in excess of the full public grant, each worth 25 percent of the original grant. Conn. Gen. Stat. §§ 9-713(a)-(d) (“nonparticipating candidate trigger”). The participating candidate may not immediately spend any given 25 percent grant — instead, the grant is initially held in escrow and the candidate may only match her opponent’s excess spending dollar for dollar. Id. The excess matching grants that participating candidates are entitled to receive through the non-participating candidate trigger, however, are capped at 100 percent of the original full public grant. Conn. Gen.Stat. § 9-713(g). The CEP also contains a triggering provision tied to independent expenditures made by non-candidates (“independent expenditure trigger”). An 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,” Conn. GemStat. § 9-601(18), that is made “with the intent to promote the defeat of a participating candidate .... ” Conn. Gen.Stat. § 9-714(a). Matching funds are triggered when a non-candidate makes an independent expenditure in support of an opposing candidate that, when combined with the opposing candidate’s other expenditures, exceeds the participating candidate’s full public grant. Conn. Gen.Stat. §§ 9-714(a)-(c). Again, the additional grant may not exceed 100 percent of the original full public grant. Conn. Gen.Stat. § 9-714(c). B. Claims Relevant to the Instant Motion Plaintiffs in this case, several minor political parties, several political organizations, and several past and potential-future candidates for various state political offices, bring a facial constitutional challenge to the Act. They filed a five-count amended complaint against several Connecticut officials in which they seek to enjoin the officials from enforcing various of the Act’s provisions. In count one, plaintiffs allege that the Act’s qualifying criteria and distribution formulas violate the First and Fourteenth Amendments to the United States Constitution because the CEP disproportionately burdens the political opportunity of minor party candidates. Am. Compl. at ¶ 53. In count two, plaintiffs allege that the nonparticipating candidate trigger, Conn. Gen. Stat. §§ 9 — 713(a)—(d), violates non-participating candidates’ First Amendment rights. Am. Compl. at ¶ 54. Similarly, in count three, plaintiffs allege that the independent expenditure trigger, Conn. Gen. Stat. § 9-714, violates the potential independent expenders’ First Amendment rights. Am. Compl. at ¶ 55. Defendants now move to dismiss counts two and three for lack of standing. Defendants also move to dismiss counts one, two and three for failure to state a claim, and, in the alternative, seek judgment on the pleadings. II. Standard of Review Defendants move to dismiss counts two and three for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. The party who seeks to exercise the jurisdiction of the court bears the burden of establishing the court’s jurisdiction. Thompson v. County of Franklin, 15 F.3d 245, 249 (2d Cir.1994). To survive a Rule 12(b)(1) motion, a plaintiff must clearly allege facts demonstrating that the plaintiff is a proper party to invoke judicial resolution of the dispute. Id. Although the plaintiff bears the ultimate burden of establishing jurisdiction by a preponderance of the evidence, “until discovery takes place, a plaintiff is required only to make a prima facie showing by pleadings and affidavits that jurisdiction exists.” Koehler v. Bank of Bermuda, 101 F.3d 863, 865 (2d Cir.1996). “When considering a party’s standing, we ‘accept as true all material allegations of the complaint, and must construe the complaint in favor of the complaining party.’ ” Thompson, 15 F.3d at 249 (quoting Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975)). If a plaintiff has failed to allege facts supportive of standing, it is within the court’s discretion to allow or to require the plaintiff to supply, by amendment to the complaint or by affidavits, further particularized allegations of fact deemed supportive of standing. Id. Defendants also move to dismiss, and for judgment on the pleadings, with respect to counts one, two, and three pursuant to Rules 12(b)(6) and 12(c). “[A] motion to dismiss for failure to state a claim ... that is styled as arising under Rule 12(b) but is filed after the close of pleadings, should be construed by the district court as a motion for judgment on the pleadings under Rule 12(c). This makes eminently good sense because a motion for judgment on the pleadings is the direct descendant of that ancient leper of the common law, the ‘speaking demurrer.’ ” Patel v. Contemporary Classics of Beverly Hills, 259 F.3d 123, 126 (2d Cir.2001). I need not parse out the relatively complex filing history of this consolidated case to determine whether the instant motions, or particular portions of the motions, should be treated as motions to dismiss or motions for judgment on the pleadings because the standard of review here, as well as the analysis of the issues, are the same. See id. Thus, as a practical matter, I treat the two motions as one. “The standard for granting a Rule 12(c) motion for judgment on the pleadings is identical to that of a Rule 12(b)(6) motion for failure to state a claim.” Id. Pursuant to that standard, the defendants’ motions will be granted only if “it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.” Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984). When deciding a motion to dismiss pursuant to Rule 12(b)(6), the court must accept the material facts alleged in the complaint as true, draw all reasonable inferences in favor of the plaintiffs, and decide whether the plaintiffs have pled a plausible claim for relief. Bell Atl. Corp. v. Twombly, — U.S. -, -, 127 S.Ct. 1955, 1969, 167 L.Ed.2d 929 (2007); Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d Cir.2007). Courts may also consider any documents attached as exhibits or incorporated by reference in the pleadings, and any other matters of which judicial notice may be taken. Samuels v. Air Transp. Local 504, 992 F.2d 12, 15 (2d Cir.1993). In addition, courts may “look to public records ... in deciding a motion to dismiss.” Blue Tree Hotels Investment (Canada), Ltd. v. Starwood Hotels & Resorts Worldwide, Inc., 369 F.3d 212, 217 (2d Cir.2004). III. Standing To satisfy Article III standing, a plaintiff must first establish that she has suffered an injury in fact that is both “concrete and particularized,” and “actual or imminent, not ‘conjectural’ or ‘hypothetical.’ ” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Second, a plaintiff must demonstrate a causal connection between the injury and the conduct of which she complains, specifically, that the injury is “fairly ... trace[able] to the challenged action of the defendant, and not ... the result [of] the independent action of some third party not before the court.” Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 41-42, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976). Finally, the injury must be redressable by a favorable decision. Lujan, 504 U.S. at 561, 112 S.Ct. 2130. In addition, the injury-in-fact requirement “serves to distinguish a person with a direct stake in the outcome of a litigation — even though small — from a person with a mere interest in the problem.” United States v. Students Challenging Regulatory Agency Procedures, 412 U.S. 669, 690, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973). Finally, where “plaintiffs allege an intention to engage in a course of conduct arguably affected with a constitutional interest which is clearly proscribed by statute, courts have found standing to challenge the statute, even absent a specific threat of enforcement.” United Food & Commercial Workers Int’l Union v. IBP, Inc., 857 F.2d 422, 428 (8th Cir.1988). The crux of defendants’ standing argument is that the plaintiffs have failed to plead a sufficient basis to establish that they will be injured by several of the CEP’s challenged provisions. A. Do Plaintiffs Have Standing to Challenge the Qualifying Criteria for Petitioning Candidates? Defendants argue that plaintiffs lack standing to challenge the qualifying criteria for petitioning party candidates because the plaintiffs have not specifically alleged that any of them will be a petitioning party candidate in the future, and thus, none of the plaintiffs will suffer an injury from that provision. Defendants’ argument, however, misses the mark. The CEP imposes two additional obstacles for all minor party candidates to obtain public funds: the prior success formula and the petitioning requirements. The prior success formula, by definition, is inapplicable to candidates who either (a) have not previously run for the specific office sought, or (b) whose party did not run for the specific office sought in the last election cycle. Thus, in many cases, satisfying the petitioning requirements is the only possible method to obtain public funding for a minor party candidate. In this case, at least one of the plaintiffs is a potential petitioning candidate. Plaintiff S. Michael DeRosa is a member of the Green Party, a minor political party. Am. Compl. at ¶ 11. He ran for Secretary of the State in the past election and received less than two percent of the total vote. Id.; Office of the Secretary of the State, Vote for the Secretary of the State (2006), available at http://www. sots.ct.gov/Regist-erManual/SectionVI-II/SOV06Secretary.htm. DeRosa intends to run for a state political office in the future, and although he does not allege the specific office he will seek, he does allege that he will not qualify for public funding under the CEP. Am. Compl. at ¶ 11. Taking that allegation as true, and because DeRosa will not qualify for public funding under the prior success formula, DeRosa will have to satisfy the petitioning requirements to receive public funds. DeRosa’s current inability to qualify for public funds thus derives as much, or greater, from his inability to satisfy the petitioning requirements as from the prior success formula. Moreover, the fact that DeRosa has not alleged an intention to run as a petitioning party candidate may simply be a function of the fact that, as he alleges, the petitioning requirements, which require a petitioning candidate to gather signatures in the amount of 20 percent of the total votes cast for that office in the preceding year, Conn. GemStat. §§ 9-705(c)(2), (g)(2), are impracticable or impossible to meet. Still, the fact that DeRosa is not a declared petitioning party candidate does not render the petitioning requirements any less an obstacle to his receipt of public funds. Thus, assuming the allegations of the Amended Complaint to be true, DeRosa will be imminently harmed by the petitioning requirements. B. Do Plaintiffs Have Standing to Challenge the Public Funding of Major Party Candidates in Primary Elections ? Defendants argue that plaintiffs have no standing to challenge the public funding of major party primaries because minor parties do not have primaries, and thus, minor party candidates suffer no harm from their exclusion from primary funding. Plaintiffs counter that they do suffer harm. Plaintiffs allege that, during primary elections, major party candidates gain exposure to the electorate and garner name recognition that helps the major party candidate in the general election. By funding major party candidates in primary races at an excessively high level, the law is alleged to exacerbate major party candidates’ communications advantage. Defendants may argue that funding major party candidates in their primary campaigns does not give them an advantage in the general election, and thus does not harm minor party candidates, but that goes to the ultimate issue on the merits, not to standing. There is no question that the plaintiffs have alleged a stake in the outcome of the public funding of their general election opponents during their primary campaigns. C. Do Plaintiffs Have Standing to Challenge the Independent Expenditure Trigger? Defendants argue that plaintiffs have no standing to challenge the independent expenditure trigger because plaintiffs fail to allege they plan to make any independent expenditures in the future. The mere fact that a potential donor has not made, and would not make under the current law, a donation sufficient to trigger additional public campaign funds does not necessarily divest plaintiffs of standing, however, because the very fact that the trigger would prevent a potential expender from expending in the first instance constitutes the injury that gives rise to standing. In that respect, the triggering provision is alleged to be somewhat akin to the proverbial sword of Damocles; its impact is felt even when it merely hangs, it need not fall. Again, the defendants’ argument that the triggering provision does not chill speech goes to the merits, not to standing. IV. Count One — Do the CEP’s Qualifying Criteria and Distribution Formulas Violate The First and Fourteenth Amendments? The Fourteenth Amendment to the United States Constitution prohibits States from depriving “any person of life, liberty, or property, without due process of law,” or denying “any person within its jurisdiction the equal protection of the laws.” U.S. Const. Amend. XIV. Courts perform similar analyses to evaluate claims pursuant to the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Under both clauses, a court must first determine the appropriate level of scrutiny to apply when evaluating the challenge to the law. A court must then apply the appropriate level of scrutiny to determine whether the law is appropriately tailored to meet its ends. A broad overview of defendants’ argument for dismissal of count one, and plaintiffs’ responses to that argument, is useful before analyzing the nuances of the relevant issues in great detail. Defendants argue that this case falls within the rubric of Buckley, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976), a case that upheld the constitutionality of the presidential public funding program set forth in Subtitle H of the Internal Revenue Code. Plaintiffs argue that Buckley does not control here because the facts of this case are distinguishable from those presented in Buckley, and because the differences between the CEP and Subtitle H render the CEP unconstitutional under the Fourteenth Amendment. A. Scrutiny Plaintiffs allege in Count One that the CEP violates the First Amendment and the Equal Protection clause of the Fourteenth Amendment. Under “traditional equal protection principles,” courts apply rational basis review to evaluate the constitutionality of a challenged statute, holding the law constitutional if it is rationally related to a legitimate state interest. See Clements v. Fashing, 457 U.S. 957, 962-63, 102 S.Ct. 2836, 73 L.Ed.2d 508 (1982) (“The Equal Protection Clause allows the States considerable leeway to enact legislation that may appear to affect similarly situated people differently. Legislatures are ordinarily assumed to have acted constitutionally. Under traditional equal protection principles, distinctions need only be drawn in such a manner as to bear some rational relationship to a legitimate state end. Classifications are set aside only if they are based solely on reasons totally unrelated to the pursuit of the State’s goals and only if no grounds can be conceived to justify them.”). Courts deviate from traditional equal protection principles, however, if the challenged statute discriminates against a suspect class of persons or burdens the exercise of a fundamental constitutional right in a discriminatory manner. Id. In this case, plaintiffs allege the latter. If a law burdens the exercise of a fundamental constitutional right in a discriminatory manner, it is subject to strict scrutiny, and will be held constitutional only if the law is narrowly tailored to achieve a compelling government interest. See, e.g., Police Dep’t of Chicago v. Mosley, 408 U.S. 92, 101, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972) (applying strict scrutiny to strike down an ordinance that placed content-based restriction upon certain types of picketing, holding that the “Equal Protection Clause requires that statutes affecting First Amendment interests be narrowly tailored to their legitimate objectives”); Skinner v. Oklahoma, 316 U.S. 535, 541, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942) (applying strict scrutiny to strike down an Oklahoma law that permitted the state to forcibly sterilize “habitual criminals,” holding that “strict scrutiny of the classification which a State makes in a sterilization law is essential, lest unwittingly, or otherwise, invidious discriminations are made against groups or types of individuals in violation of the constitutional guaranty of just and equal laws. The guaranty of equal protection of the laws is a pledge of the protection of equal laws.”) (internal quotations omitted). 1. Framing the Right at Issue Central to this case is the question whether the CEP burdens minor party candidates’ exercise of a fundamental right. It is axiomatic that, before determining whether a right is fundamental, a court must frame and define the right at issue. Plaintiffs allege that the CEP burdens the exercise of their First Amendment rights. In framing the particular First Amendment right at issue here, I do not write on a blank slate. Although a handful of other states have passed comprehensive public funding laws, e.g., Ariz.Rev.Stat. §§ 16-940, et seq.; Minn.Stat. §§ 10A.01, et seq.; Ky.Rev.Stat. §§ 121A.005, et seq. (repealed); Me.Rev.Stat. tit. 21-A §§ 1121, et seq.; Mass. Gen. Laws ch. 55A, §§ 1, et seq. (repealed); N.C. Gen.Stat. Ann. §§ 163-278.61, et seq.; Vt. Stat. Ann. tit. 17 §§ 2801, et seq., none of those laws is analogous to the CEP for reasons set forth below in greater detail. Thus, although most of those laws have been challenged, none of those cases provide much guidance. Instead, guidance in this case comes, almost exclusively, from Part III of the Supreme Court’s opinion in Buckley, 424 U.S. 1, 96 S.Ct. 612. In that case, plaintiffs brought a similar challenge to Subtitle H, 26 U.S.C. §§ 9001, et seq. (“Subtitle H”), a provision of the Internal Revenue Code that created a public funding system for presidential elections. Because of some rough similarities between the CEP and Subtitle H, discussions of Subtitle H and Buckley provide a useful starting point to analysis of the Act. a. Subtitle H Section 9006 of Subtitle H established a Presidential Election Campaign Fund, from which qualified candidates can receive public funding for presidential campaigns. The fund is financed under Section 6096(a), which authorizes individuals to earmark a small portion of their income tax payments, one dollar originally, to the fund. Subtitle H created three accounts, one each for (1) presidential nominating conventions, 26 U.S.C. § 9008, (2) general election campaigns, 26 U.S.C. § 9006, and (3) primary campaigns 26 U.S.C. § 9037. Subtitle H makes distinctions among major, minor, and new parties. A “major party” is “a political party whose candidate for the office of President in the preceding presidential election received, as the candidate of such party, 25 percent or more of the total number of popular votes received by all candidates for such office.” 26 U.S.C. § 9002(6). A “minor party” is “a political party whose candidate for the office of President in the preceding presidential election received, as the candidate of such party, 5 percent or more but less than 25 percent of the total number of popular votes received by all candidates for such office.” 26 U.S.C. § 9002(7). A “new party” is “a political party which is neither a major party nor a minor party.” 26 U.S.C. § 9002(8). The disbursement of funds under Subtitle H depends upon party status. National committees of major parties are entitled to receive four million dollars for their nominating conventions, but the national committee may not use that money to benefit a particular candidate. 26 U.S.C. § 9008. A minor party receives a fraction of the four million dollars equal to the ratio of “the number of popular votes received by the candidate for President of the minor party ... in the preceding presidential election,” and “the average number of popular votes received by the candidates for President of the United States of the major parties in the preceding presidential election.” 26 U.S.C. § 9008(b)(2). Major party candidates are entitled to receive 20 million dollars, adjusted for inflation, for the general election, 26 U.S.C. § 9004(a)(1); 2 U.S.C. § 441a(b)(l), provided the candidate agrees not to incur expenses in excess of the entitlement and does not accept private contributions “except to the extent necessary to make up any deficiency in payments received out of the fund on account of the application of section 9006(d).” 26 U.S.C. § 9003(b). Minor party candidates are entitled to receive a fraction of the 20 million dollars equal to the ratio of “the number of popular votes received by the candidate for President of the minor party ... in the preceding presidential election,” and “the average number of popular votes received by the candidates for President of the United States of the major parties in the preceding presidential election.” 26 U.S.C. § 9004(a)(2)(A). To receive funds, minor party candidates must agree that they will not incur expenses “in excess of the aggregate payments to which the eligible candidates of a major party are entitled,” and that they will accept private contributions only to the extent necessary to make up the difference between the fraction of full public grant they receive and the total amount of the full public grant that major parties are entitled to receive. 26 U.S.C. § 9003(c). If they do not qualify for public funding prior to an election, Subtitle H affords new party and minor party candidates an opportunity to obtain post-election funding to reimburse expenses under certain circumstances. New party and minor party candidates who receive “5 percent or more of the total number of popular votes cast for the office of President in such election shall be entitled to payments under section 9006 equal in the aggregate to an amount which bears the same ratio to the amount allowed ... for a major party as the number of popular votes received by such candidate in such election bears to the average number of popular votes received in such election by the candidates for President of the major parties.” 26 U.S.C. § 9003(a)(3). Finally, Subtitle H provides funding to use in presidential primary campaigns. 26 U.S.C. §§ 9031, et seq. To be eligible for primary funds, a participating candidate must raise at least 5,000 dollars in each of 20 states in increments of 250 dollars or less per person, and must agree to abide by expenditure limitations. Once eligible to receive funds, the participating candidate receives matching contributions up to 50 percent of the total expenditure limitation. 26 U.S.C. § 9034(b). b. The First Amendment Right at Issue in Buckley The Buckley Court, in Part III of the majority opinion, upheld the constitutionality of Subtitle H. In identifying the fundamental right at issue in Buckley, the Court began its discussion by noting that “[i]n several situations concerning the electoral process, the principle has been developed that restrictions on access to the electoral process must survive exacting scrutiny.” Buckley, 424 U.S. at 93-94, 96 S.Ct. 612. The Court stated that ballot-access restrictions can be sustained only if they further “a vital governmental interest that is achieved by a means that does not unfairly or unnecessarily burden either a minority party’s or an individual candidate’s equally important interest in the continued availability of political opportunity.” Id. at 94, 96 S.Ct. 612 (internal quotations and citation omitted). The Court, however, distinguished ballot-access restrictions from public funding programs. It noted that ballot-access restrictions were “direct burdens not only on the candidate’s ability to run for office but also on the voter’s ability to voice preferences regarding representative government and contemporary issues,” whereas “the denial of public financing to some Presidential candidates is not restrictive of voters’ rights and less restrictive of candidates’.” Id. The Court reasoned that “Subtitle H does not prevent any candidate from getting on the ballot or any voter from casting a vote for the candidate of his choice; the inability, if any, of minor-party candidates to wage effective campaigns will derive not from lack of public funding but from their inability to raise private contributions.” Id. at 94-95, 96 S.Ct. 612. As such, “[a]ny disadvantage suffered by operation of the eligibility for-mulae under Subtitle H is thus limited to the claimed denial of the enhancement of opportunity to communicate with the electorate that the formulae afford eligible candidates.” Id. at 95, 96 S.Ct. 612. In addition, Subtitle H is less restrictive than ballot-access measures because eligible candidates must accept an expenditure ceiling. The Buckley Court concluded that, although public financing is less restrictive of access to the electoral process than are ballot-access regulations, Congress nevertheless “enacted Subtitle H in furtherance of sufficiently important governmental interests and has not unfairly or unnecessarily burdened the political opportunity of any party or candidate.” Id. at 95, 96 S.Ct. 612. The Supreme Court thus identified the First Amendment right at issue as “political opportunity.” Unfortunately, the Supreme Court did not go far in defining the concept of “political opportunity,” nor did it set forth, in meaningful detail, the nature and scope of that right. Instead, the Court focused the bulk of its analysis on explaining how and why Subtitle H did not impinge on the right to political opportunity. One aspect of the decision, however, bears particular mention. Justice White, who joined Part III of the Court’s opinion in Buckley, noted that, “money is not always equivalent to or used for speech, even in the context of political campaigns.” Id. at 263, 96 S.Ct. 612. Although money is not speech per se, money facilitates a candidate’s ability to communicate with the electorate. See id. (“I accept the reality that communicating with potential voters is the heart of an election campaign and that widespread communication has become very expensive.”). Justice White also noted that campaigns have other substantial expenses that “are not themselves communicative or remotely related to speech,” and that some campaigns that operate on lower budgets engage in significantly more traditional speech than some campaigns that operate on higher budgets. Id. Still, there can be no doubt that increasing a candidate’s available funds enhances that candidate’s ability to convey her message to the general voting public. 2. Does the CEP Burden the Political Opportunity of Minor Party Candidates? a. Part III of the Majority Opinion in Buckley I again begin my analysis with Buckley. The Court first articulated the general principle that “the Constitution does not require Congress to treat all declared candidates the same for public financing purposes,” essentially because different political parties have different “needs and potential.” Id. at 97, 96 S.Ct. 612. The Court continued that “[s]ometimes the grossest discrimination can lie in treating things that are different as though they were exactly alike,” id. at 97-98, 96 S.Ct. 612, and “since the presidential elections of 1856 and 1860, when the Whigs were replaced as a major party by the Republicans, no third party has posed a credible threat to the two major parties in presidential elections.” Id. at 97-98, 96 S.Ct. 612. Because third parties have been traditionally unable to raise sufficient money to run effective presidential campaigns, Congress understandably provided major parties with full funding and minor parties with only a fraction of the full public grant. Id. at 98, 96 S.Ct. 612. “Identical treatment of all parties ... would not only make it easy to raid the United States Treasury, it would also artificially foster the proliferation of splinter parties.” Id. (internal quotation omitted). The Buckley Court then reasoned that Subtitle H does not “disadvantage nonma-jor parties by operating to reduce their strength below that attained without any public financing.” Id. at 99, 96 S.Ct. 612. Minor party candidates are still “free to raise money from private sources.” Id. In addition, participating candidates must comply with expenditure ceilings, whereas non-participating candidates are free to raise and spend unlimited sums of money. Id. Most significantly, the Court held that “[pjublic funding for candidates of major parties is intended as a substitute for private contributions; but for minor-party candidates such assistance may be viewed as a supplement to private contributions since these candidates may continue to solicit private funds up to the applicable spending limit.” Id. (emphasis added). The Buckley plaintiffs had also argued, “relying on the ballot-access decisions of this Court, that the absence of any alternative means of obtaining pre-election funding renders the scheme unjustifiably restrictive of minority political interests.” Id. at 100, 96 S.Ct. 612. The Court disagreed because the “need for an alternative means turn[s] on the nature and extent of the burden imposed.” Id. Alternative means were held unnecessary in Buckley because Subtitle H did not impose an unfair or unnecessary burden on minor party candidates. Id. at 101, 96 S.Ct. 612. The Court also noted that “[t]he primary goal of all candidates is to carry on a successful campaign by communicating to the voters persuasive reasons for electing them.” Id. Ballot-access is more important to running a successful campaign than public financing because ballot-access is, with rare exceptions, essential to a successful campaign, whereas “campaigns can be successfully carried out by means other than public financing.... [Ajfter all, the important achievements of minority political groups in furthering the development of American democracy were accomplished without the help of public funds.” Id. at 101-02, 96 S.Ct. 612. Finally, the Buckley plaintiffs challenged the five percent vote threshold that minor party candidates must meet to receive public funds. Plaintiffs argued that the threshold was too high because it far exceeded previously-challenged ballot-access thresholds. The Court rejected that argument, again reasoning that a denial of public funds is less burdensome than a denial of access to a position on a ballot. Id. at 103, 96 S.Ct. 612. In addition, Subtitle H’s five percent threshold was actually easier to meet than the five percent ballot-access threshold upheld in Jenness v. Fortson, 403 U.S. 431, 91 S.Ct. 1970, 29 L.Ed.2d 554 (1971), because the ballot-access restriction in that case required a potential candidate to acquire five percent of all eligible voters, but Subtitle H only required candidates to obtain five percent of the actual vote. Id. Significantly, the Court held that “the choice of the percentage requirement that best accommodates the competing interests involved was for Congress to make. Without any doubt a range of formulations would sufficiently protect the public fisc and not foster factionalism, and would also recognize the public interest in the fluidity of our political affairs. We cannot say that Congress’ choice falls without the permissible range.” Id. at 103-04, 91 S.Ct. 1970 (internal citation omitted). The Buckley Court also noted that any harm to minor party interests was speculative because plaintiffs brought a facial challenge to Subtitle H, so no empirical data was available to corroborate the plaintiffs’ claims. Id. (“Any risk of harm to minority interests is speculative due to our present lack of knowledge of the practical effects of public financing and cannot overcome the force of the governmental interests against use of public money to foster frivolous candidacies, create a system of splintered parties, and encourage unrestrained factionalism.”)- Although the Buckley Court rejected the petitioners’ facial challenge to Subtitle H, the Court left open the possibility that a public financing scheme might have the practical effect of discriminating against minor parties: The allegations of individual discrimination are based on the claim that Subtitle H is facially invalid; since the public financing provisions have never been in operation, appellants are unable to offer factual proof that the scheme is discriminatory in its effect. In rejecting appellants’ arguments, we of course do not rule out the possibility of concluding in some future case, upon an appropriate factual demonstration, that the public financing system invidiously discriminates against nonmajor parties. Id. at 97 n. 131, 96 S.Ct. 612. b. The Dissents in Buckley Chief Justice Burger and Justice Rehnquist dissented from Part III of the majority opinion in Buckley. In his dissent, Burger articulated two broad concerns. Burger’s first major concern was “whether public financial assistance to the private political activity of individual citizens and parties [was] a legitimate expenditure of public funds.” Id. at 248, 96 S.Ct. 612. Burger was particularly concerned with the fact that Congress was “actually] financing, out of general revenues, a segment of the political debate itself.” Id. He cited Senator Howard Baker’s remark from the Congressional debate: “I think there is something politically incestuous about the Government financing and, I believe, inevitably then regulating, the day-to-day procedures by which the Government is selected.... I think it is extraordinarily important that the Government not control the machinery by which the public expresses the range of its desires, demands, and dissent.” Id. Burger agreed with Baker, commenting that “the inappropriateness of subsidizing, from general revenues, the actual political dialogue of the people — the process which begets the Government itself — is as basic to our national tradition as the separation of church and state also deriving from the First Amendment, or the separation of civilian and military authority, neither of which is explicit in the Constitution but both of which have developed through case-by-case adjudication of express provisions of the Constitution.” Id. at 248-49, 96 S.Ct. 612 (citations omitted). Burger noted that recent history had shown the “dangerous examples of systems with a close, ‘incestuous’ relationship between ‘government’ and ‘politics,’ ” and that those dangers could not be dismissed summarily by the majority’s position that “Subtitle H is a congressional effort, not to abridge, restrict, or censor speech, but rather to use public money to facilitate and enlarge public discussion and participation in the electoral process, goals vital to a self-governing people.” Id. at 249, 96 S.Ct. 612. Burger’s second major concern was that, even if it was constitutional to fund political candidates, Subtitle H “invidiously discriminates against minor parties.” Id. at 251, 96 S.Ct. 612. He agreed with the majority that “there is a legitimate governmental interest in requiring a group to make a ‘preliminary showing of a significant modicum of support,’ ” but noted that Subtitle H “could preclude or severely hamper access to funds before a given election by a group or an individual who might, at the time of the election, reflect the views of a major segment or even a majority of the electorate.” Id. And perhaps most significantly, Burger reasoned that: “The fact that there have been few drastic realignments in our basic two-party structure in 200 years is no constitutional justification for freezing the status quo of the present major parties at the expense of such future political movements .... In short, [there are] grave risks in legislation, enacted by incumbents of the major political parties, which distinctly disadvantages minor parties or independent candidates. This Court has, until today, been particularly cautious when dealing with enactments that tend to perpetuate those who control legislative power.” Id. (citation omitted). Finally, Burger noted that Subtitle H “will invite avoidance, if not evasion, of the intent of the Act, with ‘independent’ committees undertaking ‘unauthorized’ activities in order to escape the limits on contributions.” Id. at 253, 96 S.Ct. 612. Justice Rehnquist also dissented from part III of the majority opinion in Buckley. Rehnquist first noted that he was not sure he agreed “with the Court’s comment that ‘public financing is generally less restrictive of access to the electoral process than the ballot-access regulations dealt with in prior cases.’ ” Id. at 292, 96 S.Ct. 612. In comparing ballot-access laws with Subtitle H, Rehnquist noted that states must, “by definition,” enact ballot-access laws to provide a republican form of government. Id. “The decision of the state legislature to enact legislation embodying such regulations is therefore not in any sense an optional one; there must be some standards, however few, which prescribe the contents of the official ballot if the popular will is to be translated into a choice among candidates.” Id. at 292, 96 S.Ct. 612. Rehnquist noted, however, that “Congress ... while undoubtedly possessing the legislative authority to undertake the task if it wished, is not obliged to address the question of public financing of Presidential elections at all. When it chooses to legislate in this area, so much of its action as may arguably impair First Amendment rights lacks the same sort of mandate of necessity as does a State’s regulation of ballot access.” Id. Rehnquist concluded that Subtitle H was an unconstitutional exercise of Congressional power to regulate elections. He agreed that Congress “has an interest in not funding hopeless candidacies with large sums of public money, and may for that purpose legitimately require some preliminary showing of a significant modicum of support,” id. at 293, 96 S.Ct. 612 (citations and internal quotations omitted), but concluded that, in Subtitle H, Congress had “done a good deal more than that. It has enshrined the Republican and Democratic Parties in a permanently preferred position, and has established requirements for funding minor-party and independent candidates to which the two major parties are not subject.” Id. Rehnquist continued that “Congress would undoubtedly be justified in treating the Presidential candidates of the two major parties differently from minor-party or independent Presidential candidates, in view of the long demonstrated public support of the former. But because of the First Amendment overtones of the plaintiffs’ Fifth Amendment equal protection claim, something more than a merely rational basis for the difference in treatment must be shown, as the Court apparently, recognizes.” Id. He found it “impossible to subscribe to the Court’s reasoning that because no third party has posed a credible threat to the two major parties in Presidential elections since 1860, Congress may by law attempt to assure that this pattern will endure forever.” Id. at 298-94, 96 S.Ct. 612. c. Unlike Subtitle H, the CEP is Alleged to Burden the Political Opportunity of Minor Parties, Primarily in One-Party-Dominant Legislative Districts It is immediately apparent from the face of the statute itself that the CEP’s qualifying criteria make it substantially more difficult for minor party candidates to receive public funds than major party candidates. In fact, plaintiffs allege that the criteria, as a practical matter, all but categorically exclude them from receiving public funds. As the Supreme Court held in Buckley, however, an exclusion from public funds is not necessarily unconstitutional. Id. at 102, 96 S.Ct. 612 (holding that the achievements of minor political parties “were accomplished without the help of public funds,” thus “the limited participation or non-participation of non-major parties or candidates in public funding does not unconstitutionally disadvantage them”). The relevant question here is thus not whether the CEP burdens minor party candidates’ access to public funds, but rather, whether the CEP, as a whole, burdens their political opportunity. For reasons set forth below, with respect to count one, I hold that plaintiffs have sufficiently pled that it does. Buckley’s reasoning is not controlling here for two related reasons. First, despite defendants’ assertions to the contrary, see Def. Mem. at 16, the CEP is quite different than Subtitle H. Most significantly, the CEP was created to fund literally hundreds of general elections across the state. It determines major party status based upon the results of the preceding state-wide gubernatorial election and then uses that status as a proxy for virtually every potentially eligible candidate’s chances of success in the current general election, regardless of whether the candidate is running for a state-wide or district-wide office and regardless of the composition, demographics, and voting history of any given district. In short, the CEP applies a single state-wide proxy to numerous district-wide elections. Subtitle H, by contrast, was designed to fund a single election. Determination of major party status under Subtitle H is dictated by the preceding presidential election, and then applied only to candidates in the current presidential election. Unlike the CEP, Subtitle H “measures support on a nation-wide basis for a national office,” Bang v. Chase, 442 F.Supp. 758, 768 (D.Minn.1977). Second, presidential elections are quite different than Connecticut state elections. Presidential elections are, with a few rare exceptions, always competitive, with both major party candidates enjoying significant popular support. A substantial percentage of Connecticut legislative elections are uncompetitive, however, because many legislative districts are one-party dominant. Because races for the presidency are highly competitive between major party candidates, it follows that: (a) both major parties will always run a candidate for president, and those candidates will always present more than mere token opposition to the opposing party; (b) major party candidates will otherwise raise and spend a substantial amount of money on the election; and (c) major party candidates will gain no financial advantage by accepting public funds under Subtitle H because the public funds merely replace private funds, and because the candidate must accept meaningful expenditure limitations. Plaintiffs contend, however, that in one-party-dominant districts, which constitute a large portion of Connecticut legislative districts, those circumstances do not apply because: (a) The non-dominant party often does not run a candidate, or runs only a token opponent; (b) Both the token candidate (if there is one) and the dominant candidate raise and spend substantially less on the general election than the limits set forth in the CEP, which are keyed to the most expensive races; and (c) The CEP does not merely substitute public funds for private funds — it subsidizes participating candidates with greater financial resources to conduct more communicative activities than they would otherwise conduct, and virtually compels a two-party race between major party candidates where there otherwise would have been only one major party candidate running. Taking the allegations of the amended complaint as true, the CEP has a more pervasive effect on elections than did Subtitle H. By conferring a communications benefit and compelling highly competitive two-party races in one-party-dominant districts, the CEP changes the dynamic of many state legislative races in a way that further marginalizes minor parties. Before the CEP, minor parties had greater political opportunity, and made their biggest strides, in noncompetitive districts. In the absence of substantial competition between major party candidates, plaintiffs allege that those districts proved to be fertile ground on which to spread their message. But the CEP has now created a perverse incentive for the non-dominant major party to run well-financed candidates, regardless of the party’s prior success in the district, and regardless of the candidate’s potential for electoral success. It compels a competitive two-party race between major party candidates in which the government finances, at exceedingly generous levels, major party candidates’ efforts to communicate their views and policies to the electorate. Minor party candidates will be crowded out of those races, and the CEP will snuff out the gains that minor parties have made. By perpetuating the two-party dominance of the Connecticut political landscape, the CEP is alleged to “disadvantage nonmajor parties by operating to reduce their strength below that attained without any public financing.” Buckley, 424 U.S. at 99, 96 S.Ct. 612. The disadvantage is exacerbated not only by the fact that the CEP is alleged to be so generous that participating candidates have no meaningful spending limits, but by the ease with which participating major party candidates can circumvent those spending limits. Take, for example, a three-way race between a publicly-funded Republican candidate, a Green Party candidate who has had some success in past elections but not enough to qualify for public funds, and a non-participating, independently-wealthy Democratic challenger. Suppose the district is a Republican-dominant district. Provided the Democratic challenger spends enough money on his own campaign, the publicly-funded Republican candidate could receive an additional public grant of up to the value of the entire original full public grant through the nonparticipating candidate trigger. And provided that an independent source makes enough uncoordinated expenditures on behalf of the Democratic challenger, there appears to be no statutory mechanism to prohibit the Republican candidate from receiving an additional public grant, again, up to the value of the entire original full public grant through the independent expenditure trigger. The publicly-funded Republican has now received three times the original full public grant, which was, on its own, keyed to the most expensive races for that office state-wide. In addition, the publicly-funded candidate’s party, or other individuals, can make virtually unlimited independent expenditures that directly advocate the election of the Republican or the defeat of the two challengers, as long as those expenditures are not coordinated by the Republican candidate or his campaign. Because of the government-funded and government-induced major-party slugfest, the Green Party candidate’s modest efforts to communicate with the electorate are alleged to be further marginalized. With a few exceptions, the Connecticut political landscape is, and has been, soundly dominated by the major political parties. According to a March 2006 report compiled by the Connecticut Office of Legislative Research, of the 46 candidates who ran for state-wide offices in the last three general elections (i.e., 1994, 1998, and 2002), 15 were minor or petitioning party candidates. PI. Mem., ex. B, doc. # 70-8 at 1. Of the 15 minor or petitioning party candidates, 13 received less than three percent of the total votes cast for those offices, one candidate received approximately 11 percent, and one received 19 percent. Id. The report also indicates that of the 1,115 candidates who ran for state legislative offices in the last three general elections, 166 were petitioning or minor party candidates. Id. Of the 166 minor party candidates, 105 received less than five percent of the total votes cast for those offices, 39 candidates received between five percent and 10 percent, 18 received between 10 percent and 20 percent, and four received over 20 percent. Id. at 1-2. No current member of the Connecticut legislature is registered to a minor party. See State of Connecticut House of Representatives, House Members Listed Alphabetically, available at http://www. cga.ct.gov/asp/menu/hlist.asp, and Senate Members Listed Alphabetically, available at http://www.cga.ct.gov/asp/menu/slist.asp (last visited August 7, 2007). The numbers indicate that candidates of major parties wield a tremendous competitive advantage over candidates of minor parties. The Connecticut General Assembly had no obligation to pass a law that levels the playing field, but the legislature is not free to pass a law that further slants the playing field. And the fact that minor party candidates have not achieved substantial success in past elections does not mean the CEP cannot, as a matter of law, burden their political opportunity in future elections. It is also well established that individuals generally do not have a First Amendment right to government-subsidized speech. Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 834, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995) (“the Government is not required to subsidize the exercise of fundamental rights”); see also Regan v. Taxation with Representation, 461 U.S. 540, 546, 549-50, 103 S.Ct. 1997, 76 L.Ed.2d 129 (1983) (“We again reject the notion that First Amendment rights are somehow not fully realized unless they are subsidized by the State .... 'although government may not place obstacles in the path of a [person’s] exercise of ... freedom of [speech], it need not remove those not of its own creation.’ ”) (quoting Harris v. McRae, 448 U.S. 297, 316, 100 S.Ct. 2671, 65 L.Ed.2d 784 (1980)). But when the government endeavors to enter that fray and, as alleged in this case, subsidize the expression of one set of political parties’ views to the exclusion of other political parties, it must do so in a way that does not alter the status quo to unfairly and unnecessarily burden the political opportunity of disfavored minor parties. The Supreme Court’s holding in Buckley is not controlling here, in sum, because the CEP is so fundamentally different than Subtitle H, and because Connecticut state elections are so fundamentally different than presidential elections. Unlike presidential elections, many Connecticut state elections are one-party dominant, and unlike Subtitle H, the CEP applies a statewide proxy to hundreds of district-wide races, and is alleged to change the very dynamic of many of those races. In this case, the plaintiffs have alleged that the CEP substantially increases the ability of participating major party candidates to communicate with the electorate and compels the highest level of competition between two major party candidates. The result, plaintiffs allege, is that the CEP makes it much more difficult for minor party candidates to communicate their message to the electorate in those legislative districts. Thus, the CEP allegedly burdens their political opportunity. Because the CEP is alleged to burden a fundamental constitutional right, specifically, minor-party political opportunity, I will apply strict scrutiny to the law. Thus, the present motions can be granted only if, based on the allegations of the complaint, the CEP is narrowly tailored to further a compelling government interest. B. Government Interests The Buckley Court held that “public financing as a means of eliminating the improper influence of large private contributions furthers a significant governmental interest.” Id. at 96, 96 S.Ct. 612. In this case, the CEP, as a whole, is also designed to serve