Full opinion text
MEMORANDUM OF DECISION and ORDER STEFAN R. UNDERHILL, District Judge. In 2005, Connecticut enacted the Campaign Finance Reform Act (“CFRA”) in response to public outcry over several high-profile corruption scandals involving state elected officials, including former Governor John Rowland. One aspect of the CFRA is the Citizens’ Election Program (“CEP”), a voluntary public financing scheme for candidates seeking election to the offices of Governor, Lieutenant Governor, Attorney General, State Comptroller, Secretary of the State, State Treasurer, and candidates for state senate and the state house of representative. The plaintiffs, a group of self-described “minor” parties and minor party candidates for statewide and state legislative office, challenge the CEP on the ground that its minor party candidate qualifying criteria and distribution formulae place an unconstitutional, discriminatory burden on their fundamental, First Amendment-protected right to political opportunity by enhancing the relative strength of major party candidates who can more easily qualify for public funding. The defendants are the state officials responsible for operating and enforcing the CEP and a group of intervenor-defendants who support the principles underlying the CEP (collectively, “the state”). The state defends the CEP on the ground that it does not reduce minor party candidates’ absolute political strength below what they would have otherwise been able to achieve in the absence of the CEP. The state further contends that any burden the CEP may impose is justified by compelling state interests in protecting the public fisc against funding hopeless candidacies, minimizing incentives that would promote factionalism and splintered parties, and encouraging high participation rates in the CEP by viable candidates. On December 9-10, 2008 and March 11-12, 2009, the parties tried this case to the court. After considering all of the evidence and the parties’ arguments, I make the following findings of fact and conclusions of law pursuant to Rule 52 of the Federal Rules of Civil Procedure. Good motives underlie the enactment of the CEP, namely, to combat actual and perceived corruption arising out of large contributions from private sources and to encourage candidates to spend more time engaged with voters and each other on the pertinent issues, rather than spending time fundraising. Indeed, the state should be praised for its groundbreaking efforts to increase the public’s confidence in state lawmakers and to promote the integrity of the electoral system as a whole. Spurred on by a regrettable legacy of corruption that has pervaded all levels of elected office in recent decades, Connecticut is now commendably at the forefront of a nationwide movement to increase transparency in the political process. In pursuing its campaign finance reforms efforts, however, the state must remain mindful that it is operating in the arena of core, fundamental constitutional rights that demand narrow and carefully tailored regulations. For the reasons explained below, therefore, I conclude that the CEP imposes an unconstitutional, discriminatory burden on minor party candidates’ First Amendment-protected right to political opportunity by enhancing participating major party candidates’ relative strength beyond their past ability to raise contributions and campaign, without imposing any countervailing disadvantage to participating in the public funding scheme. First, the CEP provides public funding to participating candidates at windfall levels, well beyond historic expenditure levels in most races, thus creating merely illusory expenditure “limits” for participating candidates. The CEP grant levels are also well beyond what most candidates have previously been able to raise from private fundraising sources. Accordingly, the CEP acts as an impermissible subsidy for major party candidates, rather than a permissible substitute for those traditional sources of funding. Second, the use of a statewide proxy artificially enhances the political strength of many major party General Assembly candidates by disregarding the level of public support for those candidates within their actual legislative district; in the past three election cycles, in nearly half of the legislative districts, one of the major parties has either abandoned the district or its candidate has won less than 20% of the vote, in other words, losing in landslide fashion. By using a statewide proxy, the CEP permits any major party candidate to become eligible for full public financing without first requiring those candidates to demonstrate the same significant modicum of public support that minor candidates must establish before becoming similarly eligible for full funding. In this way, the CEP distorts the strength of many major party candidates who have otherwise failed to establish any degree of success in a particular district by removing the inhibiting factors that previously deterred candidates from running in that district, such as lack of public support or inability to raise the necessary campaign funding to be competitive. Third, the CEP’s additional qualifying criteria for minor party candidates are so difficult to achieve that the vast majority of minor party candidates will never become eligible to receive public funding at even reduced levels. For instance, the legislature chose to set the necessary thresholds for the prior success requirement at vote levels that very few minor party candidates have historically attained, thus ensuring most minor party candidates would need to qualify for the CEP under the petitioning requirement. In turn, the evidence in the record establishes the CEP’s petitioning requirement thresholds are nearly impossible to achieve given the minor parties’ general lack of organizational structure, the great expense that a petition drive requires in the absence of a sufficient volunteer network, the CEP’s prohibition on hiring professional canvassing services “on spec,” and the general difficulties faced by unknown minor party candidates who cannot benefit from either name recognition or party identification when seeking the signatures of registered voters of that district. Finally, the CEP’s distribution formulae discourage minor party candidates from participating, or even attempting to participate in the CEP, by releasing significant additional funding to the participating major party opponent once the minor party candidate reaches a minimal level of fund-raising and by hamstringing the minor party candidate’s ability to collect additional contributions at levels that would permit him or her to close the fundraising gap. Given those difficulties imposed by the statute, minor party candidates face great incentives to forgo public financing, along with its associated transformative benefits, and seek funding from private sources only. Having determined that the CEP burdens the political opportunity of minor party candidates, I further conclude that the CEP is not narrowly tailored to achieving the state’s compelling interests because the state has failed to demonstrate how the public fisc is actually protected by imposing stringent qualifying criteria on minor party candidates, while permitting equally hopeless major party candidates to qualify under significantly less onerous qualifying criteria, in vastly greater numbers and at windfall funding levels. Furthermore, there is significant evidence in the record to suggest that much lower thresholds for the additional qualifying criteria — or indeed, a party-neutral scheme— would serve the state’s compelling interests equally well without imposing an unconstitutional burden on minor party candidates. I further conclude that the CEP’s excess expenditure and independent expenditure provisions also unconstitutionally burden the plaintiffs’ exercise of their First Amendment rights. In a manner analogous to the law struck down by the Supreme Court in Davis v. FEC, — U.S. -, 128 S.Ct. 2759, 171 L.Ed.2d 737 (2008), the expenditure triggers in the CEP require non-participating minor party candidates and minor parties considering making independent expenditures to choose between limiting their political speech and providing bonus public funding grants to candidates they oppose. Again, the state has failed to show that these trigger provisions are supported by interests sufficiently compelling to withstand strict scrutiny. As explained in more detail below, I conclude that the CEP represents an unconstitutional, discriminatory burden on the plaintiffs’ First Amendment-protected right to political opportunity, in violation of the Fourteenth Amendment’s Equal Protection Clause, because the state has not established how the CEP is narrowly tailored to further compelling state interests, particularly when there were less restrictive alternatives for achieving those interests available to the state at the time the CFRA was passed and subsequently amended. Accordingly, I conclude that the operation and enforcement of the CEP must be permanently enjoined. I. Factual Background A. The Parties 1. The Plaintiffs a. The Green Party of Connecticut The Green Party of Connecticut (“Green Party”) was founded in 1996 and has since fielded candidates for federal, state, and local office. Pl.Ex. A-l, DeRosa Decl. ¶ 11. The Green party is considered a “non-major” party or “minor” party in the State of Connecticut; in 2002, there were 2,142 voters registered in the Green Party, with 100-150 people actively involved in party operations at the state and local levels. Sevigny Aff. ¶ 23. According to the most recent voter registration data submitted to the court, there are 1,872 registered members of the Green Party statewide, comprising less than 1% of registered voters in Connecticut. March 26, 2009 Notice of Intervenor-Defs.’ and Defs.’ Submission of Supp. Data Ex. 2, Party Registration, Table 3. Since 2000, the Green Party has fielded a handful of candidates for state representative and state senator in each election cycle. Pl.Ex. A-l, DeRosa Decl. ¶ 11. Several of those candidates received between 10% and 20% of the vote, with.two candidates receiving in excess of 20% of the vote. Specifically, in 2000, Mike DeRosa received 10.7% of the vote in the 1st Senate District; Thomas Ethier received II.8% of the vote in the 65th House District; and Paul Bassler received 10.8% of the vote in the 142nd House District. PI. Ex. 30, OLR Research Report, Past Performance of Petitioning and Minor Party Candidates in Connecticut, at 6. In 2002, John Battista received 30.9% of the vote in the 67th House District and Simone Mason received 18.4% of the vote in the 91st House District. Id. at 8. In 2004, Mike DeRosa received 11.4% of the vote in the 1st Senate District; Joyce Chen received 27.28% of the vote in the 93rd House District; and Nancy Burton received 17.9% of the vote in the 135th House District. Appendices A & B. In 2006, Nancy Burton won 11.7% of the vote in the 135th House District. Appendix D. In 2008, Remy Chevalier received 18% of the vote in the 135th House District. Appendix F. In 2006, the Green Party qualified its first full slate of candidates for statewide office, including Cliff Thornton for Governor, Jean de Smet for Lieutenant Governor, Nancy Burton for Attorney General, Mike DeRosa for Secretary of the State, David Bue for State Treasurer, and Colin Bennett for State Comptroller. Pl.Ex. A-1. DeRosa Deck ¶ 11. The Green Party has not yet fielded a successful candidate for any statewide office or the General Assembly. It intends to run a full slate of candidates for statewide election in 2010. Id. ¶ 12. According to former and current Green Party leaders, the Party does not have a strong or comprehensive internal organization. For instance, the party does not have any paid staff members or a headquarters. Youn Deck Ex. 3, Ferrucci Dep. at 22-23. In 2006, it hired one paid campaign manager for its gubernatorial campaign, who also managed the party’s collection of part-time volunteers. Youn Deck Ex. 18, Thornton Dep. at 51-54; Youn Deck Ex. 5, Krayeske Dep. at 58; Migally Deck Ex. 1, DeRosa Dep. at 45. During his tenure as Co-Chairman of the Green Party, Tom Sevigny stated that it was often difficult to reach the necessary quorum for the monthly statewide meetings because local chapters would not send representatives with the necessary frequency. Sevigny Aff. ¶ 25. Sevigny also explained that, although the Green Party’s practice is to formally approve any candidate who runs for state office on its platform, the vote to endorse a candidate has often been “perfunctory” and that any party member who volunteered to run is likely to be approved; the Green Party has never held a primary for state office. Id. ¶ 35. See also Youn Deck Ex. 18, Thornton Dep. at 104; Migally Deck Ex. 1, DeRosa Dep. at 44-45. Finally, the Green Party has historically not had sufficient funds to supply a steady stream of monetary support to its candidates. Youn Deck Ex. 3, Ferrucci Dep. at 58. Individual Green Party candidates for the General Assembly have typically run as “exempt,” meaning they have not raised or spent in excess of $1,000 in support of their campaigns. According to the website, www.followthemoney.org, which both parties have relied on to report campaign receipts, eight Green Party candidates have raised over $1,000 since 2002. In 2002, Mike DeRosa (1st Senate District) raised $4,998, Tom Sevigny (8th Senate District) raised $2,598, Penny Teal (18th Senate District) raised $3,211, John Tattista (67th House District) raised $36,935, Peter Magistri (60th House District) raised $3,273, and Simone Mason (91st House District) raised $8,187. In 2004, Nancy Burton raised $6,325 in the 135th House District and Joyce Chen raised $10,886 in the 93rd House District. In 2006, all Green party candidates ran as exempt. In 2008, only two candidates ran as non-exempt and those candidates failed to raise over $1,000. b. S. Michael DeRosa S. Michael “Mike” DeRosa joined the Green Party in 1996 and is presently serving as one of the Party’s three Connecticut co-chairmen. Pl.Ex. A-l, DeRosa Decl. at ¶¶ 3-4. DeRosa has run for state senate in the 1st District on the Green Party platform four times (2000, 2002, 2004, and 2008) and was the Green Party’s candidate for Secretary of the State in 2006. Id. at 13-14. He received over 10% of the vote in the 2000 and 2004 elections; in 2008 he won 4.6% of the vote. In his campaign for Secretary of the State in 2006, DeRosa received 1.7% of the vote. Connecticut Secretary of the State, 2006 Election Results, available at http://www.ct.gov/sots/ cwp/view.asp?a=3188&q=392584 (last visited August 26, 2009). In the 2008 election, because the 2006 Green Party candidate in the 1st Senate District did not receive over 10% of the vote, DeRosa was not eligible to qualify for partial CEP funding under the prior-success provision. Pl.Ex. A-9, DeRosa Supp. Decl. ¶ 2. He also missed the deadline for submitting signatures to qualify for CEP funding under the petitioning provision, and therefore, he received no CEP funding in 2008. Id. In the 2008 election for state senate in the 1st District, DeRosa faced competition from both major parties and ultimately received 4.6% of the vote, or 1,109 of the 24,034 votes cast. Id. ¶ 7. DeRosa’s Democratic competitor, incumbent John Fonfara, received 78.6% of the vote and his Republican competitor, Barbara Ruhe received 16.8% of the vote. Id. As a Democrat, Fonfara qualified to receive CEP funding. Because he drew a primary challenger, Fonfara received an initial grant of $75,000 for the primary. Id. ¶ 5. He received an additional $85,000 grant because he drew a Republican challenger in the general election. Id. ¶ 6. Ruhe, the Republican candidate, was unable to collect enough qualifying contributions and thus failed to qualify for CEP funding. Id. ¶10. DeRosa intends to run as the Green Party candidate for Secretary of the State in 2010. DeRosa Decl. ¶ 14. He intends to attempt to qualify for public financing under the CEP. Id. ¶ 15. Because he only received 1.7% of the vote in 2006, he must do so by collecting signatures as a petitioning candidate. Id. ¶ 19. c. The Libertarian Party of Connecticut The Libertarian Party of Connecticut (the “Libertarian Party”) is another minor party with a statewide presence, consistently running candidates for federal, statewide, and state legislative office since 2000. Pl.Ex. A-5, Rule Decl. ¶¶ 4-6. As of March 2009, there were 998 registered Libertarians, representing less than 1% of registered Connecticut voters. March 26, 2009 Notice of Intervenor-Defs.’ and Defs.’ Submission of Supp. Data Ex. 2, Party-Registration, Table 3. According to the Libertarian Party’s treasurer, Andrew Rule, the Party has approximately 45 to 50 dues-paying members. Youn Decl. Ex. 12, Rule Dep. at 90. The Libertarian Party is ideologically opposed to any public financing of campaigns and believes that elections should be left to the marketplace. Pl.Ex. A-5, Rule Decl. ¶ 8. In 2000, the Libertarian Party ran three candidates for state senate and twelve candidates for state house. PLEx. 30, OLR Research Report, Past Performance of Petitioning and Minor Party Candidates in Connecticut, at 6. In 2002, the Libertarian Party ran several candidates for statewide office, including Darlene Nicholas for Secretary of the State, Ken Mosher for State Treasurer, and Leonard Rasch for State Comptroller. PLEx. A-5, Rule Decl. ¶4. That year the Party also ran two candidates for state house. Id. In 2004, the Libertarian Party had one candidate for state senate and four candidates for state house. Appendices A & B. In 2006, the party fielded several candidates for statewide office: Ken Mosher for Secretary of the State, Steven Edelman for State Treasurer, and Richard Connelly, Jr. for State Comptroller, plus two candidates for state house. PLEx. A-5, Rule Decl. ¶ 4. In 2008, the Libertarian Party ran one candidate for state senate. Appendix E. In 2010, the Libertarian Party plans to run a full slate of candidates for statewide office for the first time. PLEx. A-5, Rule Decl. ¶ 7. To qualify its slate for the statewide ballot, the Libertarian Party will have to meet the state’s ballot access petitioning requirement by collecting 7,500 valid signatures. Id. The Libertarian Party has had candidates for the General Assembly receive over 10% of the vote. In 2000, Michael Costanza received 26.1% of the vote in the 43rd House District and William Rood received 15.9% of the vote in the 49th House District. PLEx. 30, OLR Research Report, Past Performance of Petitioning and Minor Party Candidates in Connecticut, at 6. Also in 2000, one Libertarian Party candidate for state senate and three more candidates for state house received over 5% of the vote. Id. In 2004, one Libertarian candidate for state house received over 5% of the vote. Appendix B. In 2006, Arlene Dunlop in the 82nd House District won 7.4% of the vote; there were no Libertarian candidates for state senate. Appendix D. In 2008, the only Libertarian candidate for General Assembly — Marc Guttman — won 1.6% of the vote in the 20th Senate District. Appendix E. In 2008, Guttman claimed exempt status, meaning no Libertarian attempted to qualify for the CEP during 2008 election cycle. Since 2002, all but one Libertarian candidate for the General Assembly has claimed exempt status. In 2002, Abelardo Arias, the Libertarian candidate for the 91st House District, raised $568. http://www. followthemoney.org/database/StateGlance/ state_candidates.phtml?s=CT&y=2002& f=H&so=P&p=3# sorttable (last visited August 26, 2009). The Libertarian Party has no paid staff members and does not maintain an office. Youn Decl. Ex. 12, Rule Dep. at 113. It no longer has a telephone number, but the Party does maintain a website and a Post Office box. Id. Historically, the Party has not provided monetary support for its statewide or state legislative candidates and, according to its by-laws, intends for candidates to provide their own campaign financing. Youn Decl. Ex. 12, Rule Dep. at 114-16; Youn Decl. Ex. 13, Libertarian Party By-laws, Art. 3, § 8. The Libertarian Party does not generally cross-endorse candidates. Youn Decl. Ex. 12, Rule Dep. at 101-05. 2. The Defendants a. Jeffrey Garfield Jeffrey Garfield is the Executive Director and General Counsel of the State Elections Enforcement Commission (“SEEC”) and is sued solely in his official capacity. The SEEC is the state agency charged with the administration and enforcement of the CEP and has the authority to levy civil penalties for violations of the Act. See Conn. Gen.Stat. §§ 9-7b, 9-601, 9-701, 9-713, 9-714. b. Richard Blumenthal Richard Blumenthal is the Attorney General of the State of Connecticut and is sued solely in his official capacity. As Attorney General, Blumenthal has the statutory authority to enforce the orders of the SEEC. Conn. Gen.Stat. § 9-7b. 3. Intervenor-Defendants Audrey Blondín, Kim Hynes, and Tom Sevigny, (collectively, the “Candidate-Intervernors”), Connecticut Common Cause (“Common Cause”), and Connecticut Citizens Action Group (“CCAG”) successfully intervened in this action as defendants on February 28, 2007 in support of the CEP. a. Candidate-Intervenors The Candidate-Intervenors are former candidates for state office who plan to run again in the future. Blondín was a Democratic candidate who ran for Secretary of the State in 2004 and who states she will likely run for Secretary of the State or Governor in 2010. Hynes was a Democratic candidate who ran for State Representative for the 149th District in 2004 and who, at the time she intervened in this case, stated she would likely run for the same office again in 2008. Sevigny was a Green Party candidate who ran for State Representative for the 8th District in 2004 and who, at the time he intervened in this case, stated he would likely run for the same office again in 2008. The CandidateIntervenors support the CEP as a means for increasing access to public office, b. Common Cause & CCAG Common Cause is a non-profit citizens’ lobbying organization committed to promoting and maintaining democracy in Connecticut and has approximately 7,000 members in the state. CCAG is a non-profit organization dedicated to social, economic, and environmental justice with approximately 30,000 members in Connecticut. These groups support the CEP because they believe it reduces the influence of special interest money on elections and creates opportunities for individuals who lack independent wealth to run for office. B. Events Leading to the Passage of the CFRA Over the past decade, Connecticut has been rocked by several widely publicized corruption scandals involving high-ranking state and local officials, including, inter alia, the resignation and conviction of Governor John Rowland for improperly accepting valuable gifts and services in exchange for lucrative state contracts. As a result of those scandals, in an effort to restore citizens’ faith in state government, the General Assembly passed the CFRA in late 2005. The CFRA is comprised of two principal components: (1) the CEP, the focus of the present decision, which creates a voluntary scheme for the public financing of campaigns for statewide and state legislative office, and (2) a ban on campaign contributions from, and solicited by, certain lobbyists, state contractors, and their immediate family members. I recently decided the constitutional challenge to the latter component in Green Party of Connecticut v. Garfield (“Green Party II"), 590 F.Supp.2d 288, 294 (D.Conn.2008) (appeal pending), holding that the bans — as amended through December 19, 2008 — did not violate the plaintiffs’ rights protected under the First Amendment. 1. Connecticut’s Corruption Scandals On June 21, 2004, John Rowland resigned as Governor following accusations that he had improperly accepted over $100,000 dollars worth of gifts and services from state contractors, including free or reduced vacations in Florida and Vermont, construction work on his Connecticut lake cottage, and free private jet flights to Las Vegas and Philadelphia, in exchange for facilitating the award of several state contracts. Feinberg Decl. Ex. 3. Rowland subsequently pled guilty to federal criminal charges, including federal income tax evasion and conspiracy to defraud the state and its citizens of the honest services of its Governor. Feinberg Decl. Exs. 2 & 4. In March 2005, Rowland was sentenced to a term of imprisonment of one year and a day and ordered to pay $82,000 in fines. Feinberg Decl. Ex. 4. Rowland’s chief of staff, Peter Ellef, his deputy chief of staff, Lawrence Alibozek, and several state contractors, including William Tomasso and the Tunxis Management Company, also pled guilty to federal charges stemming from their roles in that corruption scandal. Feinberg Decl. Exs. 5-10. 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 “Corruptieut.” See, e.g., Paul von Zielbauer, The Nutmeg State Battles the Stigma of Corrupticut, N.Y. Times, Mar. 28, 2003 (“Nowadays, from Storrs to Stamford, there are jokes about living in Corrupticut, Connection-icut or, the new favorite, Criminalicut.”). For example, in 1999 State Treasurer Paul Silvester pled guilty to federal racketeering and money laundering charges stemming from a kick-back scheme involving state pension investments. Feinberg Deck Ex. 11. In return for investing over $500 million of the state’s pension funds with certain financial institutions, Silvester directed millions of dollars in “finder’s fees” to be paid to various friends and associates, who then funneled part of the money back to his campaign fund. Feinberg Deck Exs. 11-17. Silvester’s various schemes resulted in the convictions of many individuals and companies. In September 2005, State Senator Ernest Newton II pled guilty to federal bribery charges in connection with a kick-back scheme involving a non-profit organization in Bridgeport. Feinberg Deck Ex. 19. In return for a $5,000 bribe, Newton agreed to assist the non-profit group, Progressive Training Associates, Inc., in its quest to secure a $100,000 grant from the state. Id. Newton also pled guilty to federal mail fraud and income tax evasion charges for diverting $40,000 in campaign contributions to his personal use. Id. Newton was ultimately sentenced to 60 months in federal prison and ordered to pay over $13,000 in restitution. Feinberg Deck Ex. 21. See also United States v. Newton, Case No. 3:05cr233 (AHN), 2007 WL 1098479 (D.Conn.) (denying resentencing), aff'd, 226 Fed.Appx. 80 (2d Cir.2007). Although municipal officials are not eligible to receive CEP funding, nor are they subject to the CFRA’s bans on contributions and solicitations from lobbyists and contractors, corruption cases involving local officials are nevertheless still relevant to the extent that they have contributed to the atmosphere of public distrust and perceived corruption of elected officials in the state. For example, in 2003, the mayor of Bridgeport, Joseph Ganim, was convicted of federal racketeering, extortion, bribery, mail fraud, and income tax evasion arising from a scheme to award city contracts in exchange for illegal kickbacks from contractors. United States v. Ganim, Case No. 3:01cr263 (JBA), 2006 WL 1210984, at *1 (D.Conn.2006). At least three contractors also pled guilty to their role in that scheme. United States v. Lenoci, 377 F.3d 246, 248 (2d Cir.2004) (noting that “Lenoci also agreed to raise funds for the mayor’s anticipated campaign for governor, in return for Ganim’s support for the [development project]”); Bridgeport Harbour Place I, LLC v. Ganim, 269 F.Supp.2d 6, 7 (D.Conn.2002) (noting that the three contractors “acknowledged that they corruptly provided bribes, kickbacks, and other things of value ... in return for preferential treatment from Mayor Ganim in connection with the awarding of city contracts”). 2. Corruption Scandals Spur Legislature to Consider Campaign Finance Reform Spurred in large part by the fall-out from the corruption scandals that culminated in the resignation of Governor Rowland and his subsequent indictment and conviction on federal corruption charges, Connecticut lawmakers undertook a comprehensive effort to pass expansive campaign finance reforms. Following a failed legislative effort to pass campaign finance reform in June 2005, Governor M. Jodi Rell called upon the General Assembly to establish a Campaign Finance Reform Working Group (the ‘Working Group”) to craft a bill while the legislature was out of session. July 11, 2007 Declaration of Jeffrey B. Garfield (“Garfield Decl. I”) ¶ 12. Comprised of twelve state legislators, six from the House and six from the Senate, the Working Group held eleven publicly televised meetings throughout the summer and fall of 2005. In August 2005, for instance, the Working Group heard testimony from the administrators of the clean election programs in Maine and Arizona. Garfield Decl. I, Ex. 19 at 26-28; 88-89. July 10, 2008 Declaration of Jeffrey B. Garfield (“Garfield Decl. II”) Ex. 1, Tr. of Aug. 4, 2005 Working Group meeting. The Working Group also heard testimony from representatives of the intervenor-defendants, Common Cause and CCAG, along with representatives from the Brennan Center for Justice, which serves as defense counsel for the intervenor-defendants, and other national experts in the area of public financing and campaign finance reform. After three months of holding meetings, reviewing materials, taking testimony, and receiving expert advice, the Working Group presented a framework for a new bill to Governor Rell in late September 2005. Garfield Decl. I ¶ 14 and Ex. 25. In its Summary Report to the Governor, the Working Group made several recommendations related to campaign finance reform, including a proposed public financing scheme, contribution and solicitation bans for lobbyists and state contractors, limitations/prohibitions on political action committee (“PAC”) contributions, the number and amount of qualifying contributions to become eligible for public financing, public grant levels for all races, and rules for one-party-dominant districts. Garfield Decl. I Ex. 25. On the issue of qualifying contributions, the Working Group recommended that candidates be required to collect, in no more than $100 increments: (1) for the House, $5,000 from at least 150 individuals within their district; (2) for the Senate, $15,000 from at least 800 individuals within their district; (3) for state office (not Governor), $75,000, with at least 90% in-state contributions; and (4) for Governor, $250,000, with at least 90% in-state contributions. Id. at 7. The Working Group further recommended that participating candidates receive: (1) for the House, $8,000 for the primary and $25,000 for the general election; (2) for the Senate, $50,000 for the primary and $150,000 for the general election; (3) for statewide offices, $375,000 for the primary and $750,000 for the general election; and (4) for Governor, $1.25 million for the primary and $3 million for the general election. Id. For those participating candidates in “one-party-dominant” districts, meaning one major party holds a 20% or more registration advantage over the other major party, the recommended primary grants would be raised to $25,000 for the House and $80,000 for the Senate. Id. at 8. Participating candidates running unopposed would be limited to 30% of the general election grant for that office. Id. at 9. Participating candidates opposed by a nonparticipating minor party who raised less than 30% of the applicable grant amount, would be eligible for public funding equal to 60% of the grant for that office. Id. Notably, the Working Group proposal did not contain a recommendation that non-major party candidates, i.e., minor party candidates and independent/petitioning candidates (collectively, “minor party candidates”), should have to comply with additional qualifying criteria beyond collecting the requisite number and amount of qualifying contributions. Id. at 1-9. Ultimately, Governor Rell’s proposed campaign finance reform bill did not contain additional qualifying criteria for minor party candidates seeking to qualify for public funding. Pl.Ex. 87, OLR Research Report, Summary of Governor’s Proposed Campaign Finance Bill (October 4, 2005). 3. The CEP is Enacted In the fall of 2005, Governor Rell convened a Special Session of the General Assembly for the sole purpose of enacting comprehensive campaign finance reform, stating that “[t]he very legitimacy of [the people’s] government is called into question when — rightly or wrongly — the perception exists that a moneyed few play a special role or have a special influence over elections and policy.” Garfield Decl. I ¶ 15 and Ex. 27. In calling the special session, her proclamation noted that, in the past decade the people of Connecticut had “endured ... indictments, convictions and corruption investigations concerning their own state and local public officials” and that “the General Assembly can help to restore faith and trust in state government and further renew citizens’ confidence in their leaders by enacting meaningful and comprehensive campaign finance reform.” Garfield Decl. I Ex. 27. The General Assembly convened for the special session on October 11, 2005 to debate and discuss the campaign finance reform proposals. Id. After caucusing for one month, the General Assembly leaders reached an agreement on a single campaign finance reform bill, Senate Bill 2103. Garfield Decl. I ¶ 16. Senate Bill 2103 modified the Working Group’s proposed grant levels as follows: participating candidates seeking election to the Senate would receive $35,000 for the primary (down from $50,000) and $85,000 (down from $150,000) for the general election and those seeking election to the House would receive $10,000 for the primary (up from $8,000). Significantly, the bill added additional qualifying criteria for minor party candidates seeking to participate in the CEP, as detailed more fully below. The full General Assembly met in a special legislative assembly on November 30, 2005 to debate the proposed campaign finance reform bill. Garfield Decl. I ¶ 16. Although no formal findings accompanied passage of the law, the bill’s sponsors described the general purpose behind the bill, i.e., to combat actual and perceived corruption in state- government, stating that the bill would “take out sources of financing which have been considered to be corrosive” and “eliminat[e] the influence of money overall, and shift[] back to a greater reliance on grassroots.” Garfield Decl. I Ex. 28, Tr. of Nov. 30, 2005 Senate Debate at 54 (statement of Sen. DeFronzo, Chairman of the Working Group). During the Senate and House debates on Senate Bill 2103, legislators argued that the bill was necessary to redress the perception that special interests had undue influence, particularly in light of the recent political scandals. Id. at 29-30, 55-57, 61-62, 108-09, 238, 284-85, and 352-53; Garfield Decl. I Ex. 29, Tr. of Nov. 30, 2005 House Debate, at 55-56, 95-97, and 281-82. Senate Bill 2013 passed in the Senate on November 30, 2005 by a vote of 27-8, and passed in the House of Representatives on December 1, 2005 by a vote of 82-65. Garfield Decl. I ¶ 17. Governor Rell signed the bill into law on December 7, 2005, Public Act 05-5, and it became effective on January 1, 2006. Garfield Decl. I ¶ 18. The Act was substantively amended in May 2006 (Public Act 06-137) and May 2008 (Public Act 08-02). C. Provisions and Requirements of the CEP, as Amended, and as Construed and Applied by the SEEC 1. Qualifying Criteria The CEP provides public campaign financing grants to qualifying candidates for statewide and state legislative office. In order to become eligible for CEP funding, candidates must first satisfy one or more qualifying criteria, depending on their party affiliation, i.e., major or minor party. A “major party” is defined as: (A) a political 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. § 9-372(5). There are currently only two major parties in Connecticut: the Democratic Party and the Republican Party (collectively, the “major parties”). To qualify for CEP funds, all candidates, regardless of party affiliation, must raise a certain number of qualifying contributions in amounts of $100 or less (hereinafter, “qualifying contributions”). Conn. Gen. Stat. § 9-704. The total amount of qualifying contributions that a candidate must raise depends upon the office for which the candidate is running. Gubernatorial candidates must raise $250,000 in qualifying contributions, $225,000 of which must come from state residents. Id. § 9-704(a)(l). Candidates for other statewide offices, such as Lieutenant Governor, Attorney General, State Comptroller, State Treasurer, or Secretary of the State, must raise $75,000 in qualifying contributions, $67,500 of which must come from state residents. Id. § 9 — 704(a)(2). Candidates for state senate must raise $15,000 in qualifying contributions, which must include contributions from at least 300 individuals residing in that senate district. Id. § 9-704(a)(3). Candidates for state house must collect $5,000 in qualifying contributions from at least 150 residents of that house district. Id. § 9 — 704(a)(4). Once they have raised the requisite number and amount of qualifying contributions, major party candidates do not need to satisfy any additional criteria in order to become eligible for a full CEP grant. In addition to collecting the requisite number of qualifying contributions, minor party candidates, however, must satisfy at least one of two additional requirements in order to qualify for public funding. First, a minor party candidate is eligible to receive public funding if that candidate, or another member of his or her party, received a certain percentage of the vote in the previous general election for the same office (the “prior success requirement”). To receive a one-third grant, the candidate, or a member of her party, must have received at least 10% of the vote in the preceding general election. Id. § 9-705(e)(1), (g)(1). To be eligible for a two-thirds grant, the candidate, or a member of his or her party, must have received at least 15% of the vote in the preceding election. Id. To obtain a full CEP grant, the prior vote requirement increases to 20%. Id. Second, a minor party candidate can qualify for public funding by gathering signatures of qualified voters (the “petitioning requirement”). Id. § 9-705(e)(2), (g)(2). If a minor party candidate gathers signatures equal to 10% of the votes cast in the previous election for that office, the candidate is entitled to receive one-third of the full CEP grant for the general election. Id. To obtain a two-thirds grant, that candidate must collect signatures equal to 15% of the votes cast in the prior election. Id. To be eligible for full CEP funding, the signature requirement increases to 20%. Id. 2. CEP Funding Levels a. Primary Funding Participating major party candidates running in contested primary elections are eligible to receive primary funding under the CEP. Id. § 9-705. The CEP provides the following grants for primary contests: $1.25 million for gubernatorial candidates; $375,000 for all other statewide candidates; $35,000 for state senate candidates; and $10,000 for state representative candidates. Id. § 9-705(a)(l), (b)(1), (e)(1), (f)(1). The CEP increases the amount of primary grants for major candidates in one-party dominant districts. A district is considered “one-party dominant” if the percentage of registered voters for one major party exceeds the number of registered voters in the other major party by at least 20%. Id. § 9-705(e)(l)(A), (f)(1)(A). In those instances, the primary grants for participating “dominant party” candidates for state senate increases to $75,000 and for participating “dominant party” candidates for state representative increases to $25,000. Id. Any amount of a primary grant that is not expended will be reduced from the participating candidate’s general election grant. Id. § 9 — 705(j)(2). b. General Election Funding The CEP sets the following grant levels for the general election: $3 million for gubernatorial candidates; $750,000 for other statewide offices; $85,000 for senate candidates; and $25,000 for candidates for state representative. Id. § 9-705(a)(2), (b)(2), (e)(2), (f)(2). The CEP provides for an adjustment for inflation for primary and general election grants, beginning in 2010 for General Assembly candidates, and in 2014 for statewide candidates. Id. § 9-705(d) and (h). Grants for statewide candidates will be adjusted for inflation beginning with the 2014 election cycle. Id. § 9-705(d). Candidates who accept public funding may not accept any private contributions, other than the initial qualifying contributions, and, with a few exceptions detailed below, generally may not spend money in excess of the original full public grant. Id. § 9-702(c). c. Expenditure Limits Candidates seeking to participate in the CEP must abide by statutory expenditure limits. The CEP establishes three distinct periods, with differing expenditure limits. In the first period, which I will refer to as the “pre-primary, pre-general election period,” the candidate’s expenditure limit is the amount of qualifying contributions for that office and any personal funds provided by the candidate, as permitted by section 9-710(c). Id. § 9-702(c)(A). If the candidate is running in a primary election, the expenditure limit for the “primary period” is the sum of the amount of qualifying contributions and permitted personal funds not spent during the pre-primary, pre-general election period, plus the CEP primary grant and any supplemental grants released pursuant to the trigger provisions. Id. § 9-702(c)(B). Finally, for the “general election period,” the candidate’s expenditure limit is the sum of the amount of qualifying contributions and personal funds not spent during the preprimary, pre-general election and primary periods, any unexpended funds from CEP grants released for the primary period, and the general election grant plus any supplemental grants released pursuant to the trigger provisions. Id. § 9-702(c)(C). The plaintiffs contend that the pre-primary, pre-general election expenditure limit applies to a candidate who is seeking to qualify for CEP funding until that candidate actually qualifies for a CEP grant; according to the plaintiffs, this is known as the “qualifying” period. The plaintiffs, for example, believe that a minor party candidate for state house seeking to qualify for a CEP grant under the petitioning requirement is limited to spending $5,000 until that candidate actually qualifies for the CEP, which might not occur until mid-October, just weeks before the general election. Beth Rotman, the SEEC Director of Public Financing, disputes the plaintiffs’ interpretation of the CEP’s expenditure limits, stating that there is no so-called “qualifying period” expenditure limit in the CEP. March 10, 2009 Rotman Decl. ¶ 4. According to Rotman, the key event for determining which expenditure limit is applicable is the date the candidate becomes the official nominee of his or her party. Id. ¶¶ 6-7. Once the candidate becomes the nominee for his or her party, the general election expenditure limit applies, regardless whether the candidate has yet qualified for a CEP grant. Id. Therefore, even though a candidate has not yet received his or her CEP grant, so long as he or she has been formally nominated by his or her party, he or she may incur obligations for services or goods up to the amount of the applicable expenditure limit for that office, provided those goods and services are not being provided on spec (i.e., that the payment will be made whether or not the candidate actually receives a grant). Id. ¶ 8. Therefore, taking the example of Deborah Noble, the Working Families Party nominee for the 16th House District, because she was nominated to be the Working Families candidate on July 10, 2008, she was subject to the general election expenditure limit from July 11, 2008 onward, even though she did not submit her application for a CEP grant until October 10, 2008. Id. ¶ 7. Assuming no primary election, the expenditure limit for participating gubernatorial candidates is $3.25 million (plus an additional $1.25 million in the event of a primary). For other participating statewide candidates, the effective expenditure limit is $825,000 (plus an additional $375,000 for candidates in a primary election). In the General Assembly races, the expenditure limit is $100,000 for candidates for state senate and $30,000 for candidates for state representative. Depending on the type of district, i.e., party-dominant or not, the amount of a primary grant would increase the expenditure limit by $35,000 or $75,000 for state senate candidates and by $10,000 or $25,000 for state house candidates. As explained more fully below, there are additional grants and expenditures that are not subject to those limits. d. Reduced CEP Grants Participating candidates may receive a reduced grant depending on whether they are running unopposed or against a minor party candidate. CEP general election grants for unopposed major party candidates are reduced to 30% of the full grant amount for that office, resulting in the following grant amounts: $900,000 for gubernatorial candidates; $225,000 for other statewide candidates; $25,500 for senate candidates; and $7,500 for house candidates. Conn. Gen.Stat. § 9 — 705(j)(3). A minor party candidate’s entrance into a race will bring those grant totals for the participating major party candidate up to 60% of the full grant amount, provided the minor party candidate has not raised an amount equal to the qualifying contribution threshold level for that office or qualified for a partial or full CEP grant. Id. § 9 — 705(j)(4). For example, a participating major party candidate for state senate with only a non-participating minor party opponent, whose contributions total less than $15,000, will receive a $51,000 CEP general election grant. A participating major party candidate for state representative with a non-participating minor party opponent who has raised less than $5,000 will receive a grant of $15,000. If the minor party candidate becomes eligible for even a partial CEP grant or raises private contributions that exceed the amount equal to the qualifying contribution amount for that office, then the participating major party candidate receives a full CEP grant. Conn. Gen.Stat. § 9-705(j)(4). Minor party candidates who qualify for a partial CEP grant may raise private contributions, in increments of $100 or less, up to the full grant amount. Id. § 9-702(c). In certain instances, participating minor party candidates may be eligible for post-election reimbursements if they achieve a certain level of success in the election. Participating minor party candidates are eligible to receive a post-election supplemental grant so long as that candidate: (1) qualified for at least a partial CEP grant prior to the election; (2) received a percentage of the vote that corresponds to a higher grant level; and (3) reports a deficit immediately following the election. Id. § 9~705(c)(3), (g)(3). Finally, a participating major party candidate will receive a full CEP grant if his or her opponent is a major party candidate, regardless whether that opponent has qualified for CEP funding. 3. CEP Trigger Provisions In addition to the primary and general election grants, participating candidates are eligible to receive additional public funds, in the form of supplemental grants, in the event they are outspent by a nonparticipating candidate or by any other non-candidate individual or group (collectively, the “trigger provisions”). See Conn. Gen.Stat. § 9-713 (“excess expenditures”); 9-714 (“independent expenditures”). Each supplemental grant is capped at a maximum 100% of the full grant for any given office; participating candidates are thus eligible to receive an additional 200% of the full grant in supplemental funding. Id. Any participating candidate is eligible to receive supplemental grants under the trigger provisions. See id. a. Excess Expenditure Trigger 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 nonparticipating candidate receives contributions or makes expenditures exceeding 100%, 125%, 150%, and 175% of the expenditure limit for that particular office. Id.; see also Pl.Ex. 61, SEEC, Understanding Connecticut Campaign Finance Laws: A Guide for 2008 General Assembly Candidates Participating in the Citizens’ Election Program (“2008 SEEC CEP Guide”), at 65-66. Recent amendments to the CEP permit the participating candidate to access the full 25% supplemental grant immediately. Conn. Gen.Stat. § 9-713; see also Public Act 08-02, § 19. Under an earlier version of the CEP, if a non-participating candidate received contributions or spent in excess of the participating candidate’s expenditure limit, the participating candidate’s 25% supplemental grant would be held in escrow by the SEEC and distributed on a dollar-per-dollar basis. Green Party of Connecticut v. Garfield (“Green Party I”), 537 F.Supp.2d 359, 363 (D.Conn.2008). As amended, rather than holding each grant in escrow, the participating candidate receives the full value of the supplemental grant immediately, meaning that even if a non-participating candidate spends only $1 over the expenditure limit, the participating candidate opponent receives an immediate 25% supplemental grant. Conn. Gen. Stat. § 9-713; Pl.Ex. 61, 2008 SEEC CEP Guide, at 65-66. b. Independent Expenditure Trigger The CEP also contains a trigger provision tied to independent expenditures made by non-candidate individuals and political advocacy groups (“independent expenditure trigger”). 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; see also Pl.Ex. 61 at 57 (noting that a targeted candidate is eligible for a supplemental grant under the independent expenditure trigger provision if the expenditure “expressly advocates the defeat of a participating candidate”). SEEC regulations define expressly advocating the defeat of a candidate to mean: 1. Conveying a public communication containing a phrase including, but not limited to, “vote against,” “defeat,” “reject,” or a campaign slogan or words that in context and with limited reference to external events, such as. the proximity to the primary or election, can have no reasonable meaning other than to advocate the defeat of one or more clearly identified candidates; or 2. Making a public communication which names or depicts one or more clearly identified candidates, which, when taken as a whole and with limited reference to external events, contains a portion that can have no reasonable meaning other than to urge the defeat of the candidate(s), as evidenced by factors such as the presentation of the candidate(s) in a unfavorable light, the targeting, placement, or timing of the communication, or the inclusion of statements by or about the candidate. Conn. Agencies. Regs. § 9-714-1; Pl.Ex. 36. Furthermore, because they are considered uncoordinated expenditures, independent expenditures made in support of a candidate do not count towards an excess expenditure trigger. Id. §§ 9-713, 9-714; see also Pl.Ex. 61, 2008 SEEC CEP Guide, at 54. Independent expenditures in excess of $1,000 that are made in support of a participating candidate or to promote the defeat of a participating candidate must be reported to the SEEC, even if they would not trigger matching funds for the participating candidate. Conn. Gen.Stat. § 9-612(e)(2). If such an expenditure is made more than 20 days before the day of an election, it must be reported within 48 hours of the expenditure. Id. If such an expenditure is made 20 days or less before the day of an election, it must be reported within 24 hours. Id. 4. Organization Expenditures The CEP exempts from the definition of “contribution” or “expenditure” certain expenditures made on behalf of participating candidates by party and legislative committees, known as “organization expenditures.” An organization expenditure is defined as “an expenditure by a party committee, legislative caucus committee or legislative leadership committee for the benefit of a candidate or candidate committee.” ■ Conn. Gen.Stat. § 9-601(25). There are four legislative caucus committees: one for each major party in the House and one for each major party in the Senate. Id. § 9-605(e)(2). There are eight legislative leadership committees. Id. § 9 — 605(e)(3). There are 366 state and town party committees. March 4, 2009 Decl. of Jeffrey Garfield (“Garfield Decl. Ill”) Ex. A. Because there are no minor party members of the General Assembly, there are no minor party legislative leadership or legislative caucus committees, although minor parties can and do have state and town party committees. The CEP permits party and legislative committees to make organization expenditures for the following purposes: (A) The preparation, display or mailing or other distribution of a party candidate listing. As used in this subparagraph, “party candidate listing” means any communication that meets the following criteria: (i) The communication lists the name or names of candidates for election to public office, (ii) the communication is distributed through public advertising such as broadcast stations, cable television, newspapers or similar media, or through direct mail, telephone, electronic mail, publicly accessible sites on the Internet or personal delivery, (iii) the treatment of all candidates in the communication is substantially similar, and (iv) the content of the communication is limited to (I) for each such candidate, identifying information, including photographs, the office sought, the office currently held by the candidate, if any, the party enrollment of the candidate, a brief statement concerning the candidate’s positions, philosophy, goals, accomplishments or biography and the positions, philosophy, goals or accomplishments of the candidate’s party, (II) encouragement to vote for each such candidate, and (III) information concerning voting, including voting hours and locations; (B) A document in printed or electronic form, including a party platform, a copy of an issue paper, information pertaining to the requirements of this title, a list of registered voters and voter identification information, which document is created or maintained by a party committee, legislative caucus committee or legislative leadership committee for the general purposes of party or caucus building and is provided (i) to a candidate who is a member of the party that has established such party committee, or (ii) to a candidate who is a member of the party of the caucus or leader who has established such legislative caucus committee or legislative leadership committee, whichever is applicable; (C) A campaign event at which a candidate or candidates are present; (D) The retention of the services of an advisor to provide assistance relating to campaign organization, financing, accounting, strategy, law or media; or (E)The use of offices, telephones, computers and similar equipment which does not result in additional cost to the party committee, legislative caucus committee or legislative leadership committee. Id. The CEP limits organization expenditures made on behalf of participating candidates for the General Assembly, but not for statewide office. Conn. GemStat. § 9-718. Specifically, under the CEP, each committee is limited to making $10,000 in organization expenditures on behalf of candidates running for state senator and $3,500 in organization expenditures on behalf of candidates running for state representative. Id. The CEP further prohibits any primary election organization expenditures made on behalf of candidates running for state senator or state representative. Id. Committees are required to report all organization expenditures made on behalf of participating candidates. Conn. Gen.Stat. § 9-608(c)(5). The present organization expenditure provisions were revised in 2006 in an effort to close the perceived organization expenditure “loophole” that existed. Previously, party and legislative committees were permitted to make unlimited expenditures for the advertising, campaign staff, and consultant and fundraising costs for all participating candidates, statewide and General Assembly alike. The General Assembly passed some amendments to the CEP in May 2006, narrowing the organization expenditure provision to its present construction by limiting the amount of organization expenditures that can be made on behalf of candidates running for General Assembly. 5. Exploratory Committees Before declaring their official intent to seek public office, individuals are permitted to set up exploratory committees to “test the waters” for a potential campaign. SEEC Declaratory Ruling 2007-02 at 1 (“SEEC Ruling 2007-02”). Once a candidate declares his or her official intent to seek a party’s nomination for or election to a specific office, the candidate has 15 days to dissolve the exploratory committee and set up a candidate committee. Conn. Gen.Stat. §§ 9-608®, 9-604(e). A candidate who intends to participate in the CEP may use his or her explora