Andy Bromage photo

Yale University Professor Donald Green.

A Yale University professor told a federal judge Wednesday that minor party candidates get "a fantastically good deal" under the state's new clean elections system.

The testimony, by political science professor Donald Green, was in stark contrast to the portrait painted a day earlier by the Green Party of Connecticut's lawyer, who spent seven hours describing the hurdles third parties face trying to get funds through the Citizens Election Program.

Green was called as an expert witness for the state Elections Enforcement Commission during day two of a bench trial in U.S. District Court in Bridgeport. The Green Party, the ACLU and the lobbyists' association are challenging the state's campaign finance reform law on the grounds it imposes stricter rules on minor political parties than on Democrats and Republicans.

In the calm and precise tone of a scholar, Green refuted the notion that third parties somehow get the shaft because they must raise seed money and gather signature petitions to qualify for taxpayer-funded election grants. Actually, it's a great deal for minor parties, he said.

The Citizens Election Program benefits minor parties in three ways, Green said: It gives them access to money they wouldn't otherwise have access to (public election grants that range from $3 million for governor down to $50,000 for state representative); it helps them build a presence in neighborhoods by meeting voters during petition drives; and it gives voters incentive to support third parties because voting for minor party candidates helps them qualify for ballot access and public money the next time.

THE 20 PERCENT DOCTRINE

The Green Party's argument is that the law is unconstitutional because it makes it harder for third parties to secure public cash than for major parties. Democrats and Republicans are guaranteed public election grants so long as they raise a base amount of seed money ($15,000 for state Senate, $250,000 for governor, and varying amounts for other offices) in amounts of $100 or less.

Minor parties, by contrast, can only get the full grant if they raise the benchmark amount of cash, and if they won 20 percent of the vote for that seat the prior election, or collect valid signatures equal to 20 percent of the voter turnout for the past election. Minor candidates can get lesser grant amounts for lesser shares of the vote --- two-thirds of the grant for 15 percent and one-third for 10 percent.

Raising that much money isn't nearly as hard as the Green Party makes it out to be, the professor testified.

"When you look at the powerful financial incentives the Citizens Election Program offers, even at 10 percent the threshold is very, very minimal," Green said. "A 20 percent petition is less than 10,000 signatures [for certain races]. Twenty percent is a very low threshold in terms of an outward expression of electibility."

Prof. Green said there's good reason to set the threshold for full funding at 20 percent, instead of the 5 percent bar set by public financing programs in Maine and Arizona. For one thing, it weeds out "non-serious candidates who embarrass the system" and would erode support for publicly-funded elections in the legislature. And two, it keeps out so-called "stalking horse candidates," Democrats or Republicans who would run a sham campaign as a "third party" candidate to divide the opposition.

But U.S. District Judge Stefan R. Underhill saw an inherent flaw in Green's logic: If collecting signatures from 20 percent of the voting public is so easy (for minor parties), then how would it deter major parties from running stalking horse candidates anyway? "You can't have it both ways," the judge said.

MAJOR VS. MINOR

What makes someone a major political party? In Connecticut, the number 20 does.

Parties that have 20 percent of registered voters with them are considered a major party. All others – the Greens, the Libertarians, the Working Families Party, Connecticut For Lieberman – are considered minor.

The constitutional question that came into focus Wednesday, and that could end up deciding the case, was this: At what level can the threshold for qualifying for full public financing constitutionally be set? The clean elections law sets it at 20 percent, same as the bar for major party status.

Underhill questioned how realistic it is to expect a minor party candidate to qualify for public financing in the 2010 governor's race. Doing so would require getting around 100,000 valid signatures, roughly 20 percent of the vote total from 2006. Many times campaigns collect twice as many petitions as actually needed to account for ones that don't check out. For governor, that would mean 200,000 petitions, and at $2 per signature (the going rate for professional canvassers) that would cost $400,000, more than the amount allotted candidates during the qualifying period.

As the day wore on, Underhill pressed a defense lawyer, Monica Youn of the Brennan Center for Justice, which has teamed up with the state to defend the law, about why a hopeless Republican running in a Democratic stronghold like Bridgeport, for instance, should be treated any different than a hopeless Green running anywhere else.

Underhill: "What evidence did the legislature consider when setting the thresholds?"

Youn: "The legislature did not specifically look at statistics for petitioning. What they did was look at the 10, 15 and 20 percent benchmarks with regards to fundraising and petitioning."

Youn noted than in 2006, 22 out of 168 minor party and petitioning candidates in state elections
(about 13 percent) received over 10 percent of the vote, meaning they would qualify for some level of public financing in 2008.

Youn: "The evidence shows a viable minor party candidate would be able to hit the threshold."

Then Youn took on what is often whispered about, if not expressly said.

"The suggestion that two major parties work together to keep out minor party candidates just doesn't hold up as a matter of logic. The major parties aren't worried about minor parties. They're worried about the other major party. This idea that they're working together to protect a duopoly is just fiction."

Underhill's questions eventually boiled down to this: Why should a major party with a history of poor performance in a district (say, the Republican Party in Bridgeport) be treated any differently than a minor party? If Bridgeport was so solidly Democrat that Republicans didn't run candidates there for years, why shouldn't they have to petition to publicly finance a campaign there same as the Greens?

The answer given by Prof. Green and the defense was basically that the Republicans, in this instance, have a greater level of "latent" support around the state than minor parties have, as evidenced by broad support for certain GOP candidates, like the popular Gov. Jodi Rell.

"Even in one-party dominant districts, the lesser majority party usually gets 20 percent," Youn told the judge.

"If the legislature had wanted to discriminate, they couldn't have found a better number than 20 percent," Underhill replied.

WHAT'S NEXT

This week's bench trial is a facial hearing, weighing the constitutionality of the law on its face, or as written.

The parties will reconvene in Bridgeport on Thursday to summarize their arguments, and come back in March with complete data from the 2008 election to argue the law "as applied," in other words, does the law have a discriminatory effect in its application?

Stay tuned.

Click here to read coverage of Day 1.