Ballot Access expert critiques Brennan Center

On August 27, U.S. District Court Judge Stefan Underhill held that Connecticut’s public funding law for candidates is so discriminatory in favor of the two major parties, and against all other parties and candidates, that it is unconstitutional in its entirety. (Story: here.) The Brennan Center for Justice at NYU School of Law distributed a press release against the decision, and in support of the lopsided public campaign funding law. Richard Winger, a ballot access expert who had commented on the case, posted a point-by-point critique of the Brennan Center position.

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Brennan Center Press Release on Connecticut Public Funding Decision is Inaccurate

Richard Winger / August 28th, 2009

The Brennan Center for Justice, which was once a friend of voting rights for minor party and independent voters, did most of the legal work of defending the discriminatory Connecticut public funding law in court. On August 28, the Brennan Center issued an angry press release about yesterday’s decision. It says, “This decision by a single judge completely disregards binding constitutional precedent regarding public financing programs – which have been consistently upheld by the Supreme Court and other federal courts.”

The U.S. Supreme Court has only had one case involving public funding, Buckley v Valeo. The decision, released in 1976, upheld federal law that gives political parties general election funding for the presidential campaigns if that party polled at least 5% of the vote in the last presidential election. It also gives general election public funding to new parties that surpass 5%, but immediately after the election is over (so, parties that expect to poll 5% for President are usually able to borrow money on hopes of meeting the goal; John Anderson used this strategy in 1980).

The U.S. Supreme Court upheld the differential in treatment by noting that the general election public funding was only upholding the status quo, because no minor party or independent presidential candidate had won the presidency since before the Civil War, and only once since the Civil War had such a candidate even placed second.

By contrast, the Connecticut law affects candidates for state office. Over 180 non-Republican, non-Democratic nominees for state office (in the 50 states) have been elected in the last 32 years. Connecticut elected an independent Governor in 1990 and an independent U.S. Senator in 2006. Green Party and Working Families Party nominees (who were not also major party nominees) have been elected recently to partisan city office in Connecticut. All of the New England states except Connecticut have minor party or independent state legislators.

The Brennan Center would apparently have people believe that Buckley v Valeo was intended to make it possible for governments to discriminate against minor party and independent candidates, even in elections in which those candidates sometimes do win. The press release also ignores the fact that the U.S. Supreme Court ruled in Cook v Gralike that the Constitution forbids the government from discriminating for or against any candidates for Congress. The press release also ignores the fact that Arizona and Maine public funding programs do not discriminate, and that the bills for public funding of Congressional candidates, S752 and HR 1826, do not discriminate. Nor does the Brennan Center mention the Helsinki Accords, in which the United States pledged not to discriminate for or against any parties or candidates. If Justice William Brennan were alive today, he would be disappointed in the Brennan Center.

Related stories:

Previous Richard Winger/BAN story posted at IPR, including a comment string: here.

A recent blog post against the decision, which was noted at Ballot Access News: Judge Underhill Demolishes Public Financing in CT, article at My Left Nutmeg

A 2007 blog post at onthewilderside about another anti-third party position by the Brennan Center: Stop the Un-Fair Elections Act Now!

2 thoughts on “Ballot Access expert critiques Brennan Center

  1. Dave Schwab

    Way to go, Richard. Your straightforward analysis is unassailable, and your defense of basic fairness is admirable. I think I’ll put BAN on my Christmas list this year.

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