Thursday, November 19, 2015

Clean Election Law Skirted: Jepsen Gives Last Rights To Constitutional Cap


Leading Democrats in the state – Governor Dannel Malloy, Speaker of the House Brendan Sharkey, President Pro Tem of the Senate Martin Looney – have opened a multi- pronged attack on the state’s clean election program and its watchdog, Connecticut’s State Elections Enforcement Commission (SEEC).

The effort to defang the state’s clean election laws began with an attempt by the Malloy administration to overleap a provision that prevents potential campaign contributors who do business with the state from polluting elections with campaign contributions to politicians who are in a position to advance their interests.


The Malloy administration had produced a mailer that was clearly a Malloy campaign ad. The administration added to the document a fine-print fig leaf concerning polling information and then argued that the small print polling notice transformed the Malloy campaign ad into a federal product that fell outside Connecticut clean campaign law regulations. The Republican Party filed a complaint with SEEC and the commission subpoenaed relevant documentation from the State Democratic Party in an effort to adjudicate the complaint. The state Democratic campaign commission did not want anyone – but especially not Republicans – poking about in its e-mails and so refused to acknowledge the subpoena. The matter was thrown into court, where it now lingers, batted to and fro like a shuttlecock by defense and plaintiff attorneys.

Coincidentally, Mr. Sharkey and Mr. Looney have proposed to slash funding to SEEC for one year – not in retaliation for the commission’s finding, we are to understand, but rather to balance Connecticut’s repeatedly out of balance budget. The budget is repeatedly out of balance because for many years expenditures in Connecticut have exceeded tax receipts and the state has adamantly refused to make permanent, long term cuts in spending. Having exhausted his taxing options, Mr. Malloy, who imposed upon Connecticut both the largest and the second largest tax increases in state history, felt obliged in his first campaign to resist further tax increases. Since then, he has used his recissionary powers to nip and tuck his budgets.

Forced by a constitutional cap to limit spending, Mr. Malloy withdrew pension payments from the cap so that he might spend more money unmolested by those who were insisting on long term, permanent spending cuts, but a recent decision rendered by Attorney General George Jepsen likely will make all such budget balancing tomfoolery unnecessary in the future.

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Mr. Jepsen, once a Democratic Party Chairman, has rendered an opinion that the constitutional provision establishing Connecticut’s spending cap is, for all practical purposes, a dead letter that cannot be enforced because the legislature that established the constitutional provision never provided the definitions necessary to activate the law.       

It has taken nearly a quarter century, but finally Mr. Jepsen has given former Governor Lowell Weicker’s fraudulent constitutional cap on spending a decent burial. Connecticut’s spending cap, regularly violated by Connecticut’s last four governors, was initiated during the Weicker administration as a sop to induce wavering legislators to vote in favor of Mr. Weicker’s income tax.

The head of Mr. Weicker’s Office of Policy Management at the time the income tax measure squeaked through the General Assembly was Bill Cibes, a single issue, pro-income tax candidate for governor who had been soundly defeated by Bruce Morrison in a Democratic primary. During his own gubernatorial campaign, Mr. Weicker placed himself among anti-income tax stalwarts. Mr. Weicker proclaimed that instituting an income tax while recessionary flames were scorching Connecticut’s behind would be tantamount to “pouring gas on a fire.” The ever mercurial Mr. Weicker soon repented of his prudence and went full bore for an income tax after he had appointed Mr. Cibes to head his budget making operations. Mr. Weicker made certain that Mr. Cibes would fall on a cushy featherbed: In the summer of 1994, five months before Mr. Weicker left office, Mr. Cibes left his post as Secretary of the Office of Policy Management and became Chancellor of the newly formed Connecticut State University System.

Mr. Cibes re-emerged in April, 2015 to inveigh against Connecticut’s constitutional spending cap in a Hartford Courant op-ed piece, “Abolish Fatally Flawed State Spending Cap.”

“The spending cap,” Mr. Cibes wrote, “should be abolished. Instead, the public should rely on a control mechanism at the state level that is used effectively at the municipal level: Vote out officials who strike the wrong balance between service quality and cost control.

“To be sure,” Mr. Cibes prognosticated, “a quick repeal of the constitutional spending cap is unlikely. But in some past years, legislators and governors from both political parties have found ways to relax the cap.”

Mr. Jepsen’s decision seems sound, and it reverses an earlier absurd decision made by then Attorney General Dick Blumenthal, who advised that even though the clean campaign constitutional provision may have been flawed as a constitutional measure, the law retained its force as a statutory regulation. It didn’t, and doesn’t. As Gertrude Stein might have said, had she instead of Mr. Blumenthal been Attorney General in Connecticut, “A constitutional law is a constitutional law is a constitutional law. And if the law is deprived of necessary definitions, it is inoperative.

Republicans have now called upon the Democratic dominated General Assembly to supply the missing definitions that would give force to the law and reestablish, at a minimum, the illusion of clean elections in Connecticut. It is by no means certain that Democrats will warm to the notion. A budget without a cap, like a house without a roof, provides an infinite extension; without a cap, spending could reach Sirius and, in a one-party state, political ambition generally trumps prudence. Given a lie detector test and sworn under oath, even the ambitious Mr. Cibes might admit as much.   



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