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Green Party lawyer Mark Lopez: third parties are in a box

Only the Green Party could complain about a state law that gives them keys to a campaign war chest with more cash inside than they've ever dreamed of.

When's the last time you heard of a Green raising more than a few thousand bucks to run for statewide office, or winning more than the usual 5 or 6 percent? The new Citizens' Election Program promises third parties up to $3 million in public money to run for office — the same as any Democrat or Republican!

But there were the Greens in U.S. District Court in Bridgeport last week, telling a judge that Connecticut's clean elections law is unconstitutional because it makes minor parties work harder for campaign cash than Republicans and Democrats. After two full days of testimony, their points actually started making sense.

With receipts from Connecticut's first clean election not even tallied, state officials found themselves back in court last week defending the program, passed in 2005 after a string of embarrassing pay-for-play scandals sent a host of public officials to prison.

The Green Party of Connecticut, along with the American Civil Liberties Union and the lobbyists' association, are challenging the Citizens' Election Program (CEP) on the grounds it discriminates against minor parties and illegally bars lobbyists from donating to political campaigns.

The two-day bench trial was called to answer one question: Does the law, on its face, discriminate against third parties?

Consider a few facts:

• Under the CEP, Republicans and Democrats are guaranteed public money to run for governor, legislature and other state offices if they raise a base amount of seed money in increments of $100 or less.

• Minor party candidates only get the full grant if they raise seed money and if they won 20 percent of the vote for that seat in the prior election — or collect signed petitions equal to 20 percent. They 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.

• Democrats and Republicans can get lucrative primary grants if they're challenged from within, no matter how hopeless their opponent is. That money's effectively off-limits to third parties, who almost never face primaries.

• The CEP allows political parties to make "organizational expenditures" on behalf of candidates, for consultants, literature and the like. That's a huge advantage for Democrats and Republicans because it permits special interest PACs and rich donors to funnel tens of thousands of dollars to candidates they're barred from giving to directly, by passing it through party fundraising committees.

• Nothing stops candidates from raising and spending money under "exploratory" committees, which have higher expenditure limits than the CEP, then joining the public program at the last possible moment. That again favors the major parties, which have party infrastructure and a vast network of deep-pocketed donors already in place.

Qualifying might be doable in a state senate race, for instance, where you might need 5,000 petitions to get the full $85,000 grant.

But what about the 2010 governor's race, when a candidate will, by one estimate, need 400,000 signatures to qualify for public money? That's not possible, according to Green Party attorney Mark Lopez. For one thing, at $2 per signature (a typical rate paid to canvassers) the $800,000 price-tag would exceed the amount you're legally allowed to spend during the qualifying period.

"You're in a box," Lopez told the court. "You can't get out if you're an independent candidate."

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Donald Green has a different theory on what's keeping the Green Party down: Voters don't like them.

"Minor parties tend to have very little appeal to the voters," says Green, a Yale University political science professor who testified as an expert witness for the state. "The real reason there isn't support is the party's position and organization."

Or lack of organization. The Greens field candidates (they ran a full slate for Congress this year), but their efforts at party-building and voter outreach are severely lacking, to say the least. That can make it hard to sympathize.

Professor Green and the state's lawyers spent the better part of day two in the wood-paneled courtroom telling U.S. District Judge Stefan R. Underhill why the 20 percent threshold makes sense and why meeting the threshold isn't as hard as Greens make it seem.

Under state statute, political parties achieve major party status once 20 percent of state voters register with them. Setting the bar for full funding at 20 percent, instead of 5 percent like programs in Maine and Arizona do, weeds out "non-serious" candidates whose antics would waste taxpayer money and erode support for the program in the legislature, Green said. And it keeps out so-called "stalking horse candidates," Democrats or Republicans running sham campaigns in the guise of a "third party" purely to divide the opposition.

But Judge Underhill saw an inherent flaw in the professor'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.

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Underhill probed an even bigger flaw: Republicans are just as unelectable as Greens in some parts of the state — like right here in Bridgeport. Why should Greens have to petition for public funds in those districts and not the GOP?, Underhill asked.

The state's answer: Because even in places like Bridgeport, Republicans, when they do run, outperform minor parties.

But it wasn't third parties wasting taxpayer dollars on legislative races they couldn't possibly win this year. It was largely Republicans, and a few Democrats.

Consider that in 2008, five minor-party candidates qualified for some level of public funds, all of whom lost badly. Meanwhile, there were nine major-party candidates for Senate and 33 for House who lost by 20 points or more and still received the full public election grant. That's $85,000 for Senate, $25,000 for House. In Greater Hartford, Democratic Sen. Eric Coleman beat Republican long-shot Veronica Airey-Wilson 77-23. In Fairfield County, Democrat Sen. Bob Duff crushed Republican Steven Papadakos 70-30.

You tell me who's a bigger drain on the clean election fund.