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Courts, acting to preserve constitutional prerogatives, provide a great service to the public when they put a bit in the mouth of unelected, runaway, quasi-legislative agencies acting all too often on behalf of powerful political incumbents. And the Connecticut Supreme Court did just in a recent unanimous decision involving former State Senator Joe Markley, current State Senator Rob Samson, and Connecticut’s State Election Enforcement Commission.
There are several enduring lessons that should be drawn from the decision, many of them mentioned by Markey and Samson in a recent media release.
For those whose interest may have flagged during the past seven years, the court’s decision reinforced constitutional rights of free speech endangered by an increasingly aggressive partisan party apparatus. Their decision in Markley v. State Elections Enforcement Commission was seven years in the making. Those seven long years hang like a menacing cloud over our political system, frequently used these days by partisan agencies of government to blacken opponents in concert with a dominant political party and delay a final disposition of important issues.
“The SEEC [State Election Enforcement Commission]” Markey and Samson tell us in a media release, “had claimed in an advisory opinion issued shortly before the 2014 election that the mere mention of any other candidate on the ballot that year would constitute an improper expenditure, intended to influence another race. By spelling out in mailings to constituents their opposition to the policies of incumbent governor Dan Malloy—who was up for reelection that year—Sampson and Markley defied the SEEC stricture.
“’The SEEC tried to settle with us, as they had with twenty-five other Republican candidates accused of the same transgression,’ said Markley. ‘The SEEC demanded that we bow to their authority, acknowledging that we had done wrong and promising we would sin no more. But Rob and I knew that our intent was proper, and--as the Supreme Court unanimously affirmed—it turned out we understood the law better than the lawyers at the SEEC.’”
When the two state Republican politicians rejected SEEC’s proposed settlement –an admission of culpability – the SEEC brought the hatchet down on Markley and Sampson’s necks and imposed a stiff fine. But the two state senators refused to genuflect before the SEEC and, with much help from constitutional lawyers at the Institute for Free Speech, sued.
The suit was decided in favor of the SEEC, a decision that was upheld by an appellate court on appeal. The wheels of justice always grind exceedingly slowly, and every politician who hopes to gain an advantage over his opponent knows this. Once a political ball is tossed into a judicial court, justice and a final resolution of a political dispute grows a foot-long beard, while the sanctioned disputant is left to bask – in this case, for ten years – in presumed obsolescence. Only in some rarified political heaven are political opponents, particularly members of a minority party, “presumed innocent” before media execution. The State Supreme Court has now decided the issue on the merits of the case, leaving no room for political wiggling.
Recently retired Chief Justice Richard A. Robinson wrote in the court’s unanimous decision, “We conclude that none of the communications at issue in this appeal could reasonably be construed as anything more than a rhetorical device intended to communicate the merits of the plaintiff’s candidacies as bulwarks against the policies endorsed by Gov. Malloy and the Democratic Party.”
Sampson provided a gloss to the court’s decision: “The right to criticize the record of an elected official like Governor Malloy is fundamental to our democracy. State agencies like the SEEC should aim to protect that right, not to punish candidates for exercising it.”
And Markley added: “Now that he’s lost, SEEC Executive Director Michael Brandi calls the matter ‘a notoriously tricky application of the law.’ That didn’t prevent him from hounding me and Senator Sampson for seven years, using the resources of his office and of the Attorney General against us, because we—correctly—questioned his legal interpretation… the ‘big lie’ in the case was the notion that accepting public funding for a campaign forced candidates to obey the whim of the SEEC. The form that I signed to receive the grant stated that I would spend that money ‘in accordance with the provisions of General Statutes 9-706 (g) and with the regulations adopted by the SEEC’ I believed that I did so, and now the Supreme Court has affirmed it. I never agreed to honor an Advisory Opinion issued just days before the election, long after I had signed the form.”
Both legislators implicitly pressed home the important point – absolute, unquestioned power corrupts absolutely. What they did not say is that some agencies of government – the Attorney General’s office, the SEEC and many others -- are very poor losers, accustomed to waiting in the shadows for opportune vindication. Nothing is over until they say it’s over. Unlike mere legislators, the mob of lawyers at the disposal of past and present Attorneys General is patient, infinitely resourceful, petulant, viciously vindictive on occasion, and – a much neglected bonus – members in good standing of Connecticut’s unelected partisan Democrat deep state apparatus.
It has become far too easy in our post-moral politics for self-styled “servants of the public” to use the agencies of government to attain political ends. The Leviathan-like administrative state, always the servant of the ruling class, is too broad and soils everything.
This time, all the members of the state Supreme Court refused to play the political game. Good for them, good for the Republic, and good for constitutional government in the “Constitution State.”
