The charge made by Connecticut’s State Elections Enforcement Commission (SEEC ) against State Representative Rob Sampson and State Senator Joe Markley is that the two made statements in joint campaign mailers that, according to a story by Christine Stewart in CTNewsJunkie, “were cast in such a way to oppose an individual [Governor Dannel Malloy] who was running for statewide office in 2014. He said by joining the Citizens Election Program and receiving tens of thousands of dollars to run their campaign meant they agreed to restrict their spending to candidates who were in the race.”
Examples of the offending statements were listed by Sampson and Markley in a media release:
"Rob & Joe have consistently fought Governor Malloy’s agenda and have tried to restore Common Sense and fiscal responsibility in state government.
"Rob has fought Governor Malloy’s ‘Bad for Connecticut Agenda’, opposing Huge Increases in Government Spending, the Highest Tax Increase in Connecticut History, the New Britain to Hartford Busway, the Repeal of the Death Penalty, and the Early Release of Violent Criminals.
"Rob Sampson wants a New Direction and rejects Governor Malloy’s policies!
"It’s time to change course and STOP Governor Malloy and the majority Democrat’s dangerous agenda!
"Sampson has been a clear and consistent voice for common sense in Hartford, fighting Governor Malloy’s destructive policies of wasteful spending and high taxes.
"I am also proud to have led the fight against the many bad policies put forth by Gov. Malloy and the Democrats in Hartford."
There is a difference, most objective observers will agree, between mentioning Malloy’s policies in a campaign statement and opposing Malloy’s candidacy during a campaign in which Malloy is also running for office. Despite denials from SEEC lawyers, a blanket suppression of free speech – especially when utterances involve political statements – necessarily involves First Amendment rights, a breastplate of free speech that courts, when they are not acting at the behest of party politicians, are likely to defend vigorously, if only because free speech rights are indivisible, and a suppression of political speech on any occasion always, inferentially, affects a free press. Why should a politician be denied a right freely exercised by, say, an editorial writer – most especially when critical statements are made of politicians in the midst of campaigns?
Suppose the impossible; suppose the Hartford Courant had written in an editorial during the 2014 campaign -- when Malloy, Sampson and Markley were all running for office -- "Representative Samson and Senator Markley have consistently fought Governor Malloy’s agenda and have tried to restore Common Sense and fiscal responsibility in state government." Would the SEEC have cited Sampson and Markley had the two jointly quoted the Courant in a campaign mailing?
Even under the controlling statute, which very well may deprive Connecticut politicians of their imprescriptible First Amendment rights, the statements cited by the SEEC are harmless, because they do NOT urge the defeat of Malloy in a campaign in which Malloy is running for office. None of the statements cited by the SEEC are untrue and malicious, two standards that must be met to show that a statement made even by a non-politician is libelous and therefore falls outside the protection of the First Amendment. The libel requirements are not easily met because the protections offered by the First Amendment – especially in cases of political speech – should not be easily surmounted.
The free speech bar set by the SEEC is at ground level. One may easily step over it. Mr. Sampson argued before the SEEC that the joint statements he and Markley made in campaign literature were directed at the POLICIES of the Malloy administration, a common subject in campaigns. Now, policies, as everyone knows, are joint ventures that involve the governor, members of the governor’s party, legislators and possibly even members of the commentariate lounging in partisan pockets who approve the policies targeted by Sampson and Markley. To say "Rob has fought Governor Malloy’s ‘Bad for Connecticut Agenda’, opposing Huge Increases in Government Spending, the Highest Tax Increase in Connecticut History, the New Britain to Hartford Busway, the Repeal of the Death Penalty, and the Early Release of Violent Criminals," is shorthand notation. Sampson is not here making a campaign pitch for the election of Malloy’s Republican gubernatorial opponent. He is displaying his own political strengths by mentioning in detail policies that will distinguish him from a Democratic Party opponent who may support the Malloy agenda.
In its defense of an administrative veto of First Amendment free speech rights, the SEEC did not pause to discuss whether the statements it would unconstitutionally proscribe were true or not. There is little doubt today that Malloy’s agenda has been “bad for Connecticut.” It was bad for Connecticut in 2012 as well. The SEEC does not care a whit whether it is proscribing true, non-malicious political statements. Nor does the SEEC care that its citation and any adverse decision derived from it would run afoul of the free speech rights of Sampson and Markley. Their duty, as SEEC members see it, is to deny tax supported election funds to any candidate for office who, during his election campaign, mentions a candidate from the opposite party who is also running for a different office during the same election period.
Candidate A may be denied funding from the citizens election program by SEEC if he or she mentions candidate B in a mailing – when candidate B is an opposition party member running for a different office. Virtually identical statements made by Sampson in 2012 are allowable; they may be proscribed in 2014 because Malloy was running for governor that year. Samson notes, “I believe I was re-elected in 2012 because I made it clear to the voters that I opposed Malloy’s misguided policies. I ran my 2014 campaign on the same premise, and used the same language in defining my positions.”
The SEEC citation relies on what logicians call a distinction without a difference, because critical statements that are true do not have an expiration date. The truth ought not to have an expiration date, nor should precious First Amendment rights be proscribed by administrators coloring outside the Constitutional box.