Many controversies that break out during political campaigns aren’t resolved until after the election, but they often calm down in ensuing months as lawyers and regulators sort out the facts and issues.
It’s just the opposite, though, with the State Election Enforcement Commission’s continuing investigation of Connecticut Republicans’ complaint that the state Democratic Party spent money illegally for Gov. Dannel P. Malloy’s re-election last year.
Conflict has escalated in recent weeks between the SEEC and the Democrats, suggesting that it may take a protracted legal war to settle the question of whether Malloy benefited by the improper funneling of state contractors’ contributions into his campaign:
*The SEEC voted March 17 to “authorize the issuance of an investigatory subpoena” in its investigation of state GOP Chairman Jerry Labriola Jr.’s complaint that Democrats broke state clean-election laws by paying for mass mailings on behalf of Malloy from their party’s “federal account.” Under federal law, state contractors are allowed to contribute up to $10,000 to that federally-regulated account, even though state laws ban them from giving money to candidates for state offices, including governor.
*The big legal gun hired by the Democratic State Central Committee, attorney David S. Golub of Stamford, has been papering the walls of the enforcement commission’s office with legal motions in an unusually aggressive defense. He filed a complaint this past Tuesday to the state Freedom of Information (FOI) Commission that the SEEC went into an illegal closed session during the March 17 meeting.
*Golub also has filed an FOI request with the SEEC for all communications between it and “any third party” on various aspects of the case. “Any third party” could include federal election regulators, state Republicans and even journalists, although Golub said the request isn’t aimed at communications between the SEEC and the news media.
The reason for the FOI request, Golub said, is that he wants to find out why the SEEC refuses to respond, one way or another, to his repeated assertion that the Democrats’ use of their “federal account” to help Malloy in the state election was legal under federal election laws — which he said supersede, or “pre-empt,” the state laws cited in recent months by both the SEEC and Labriola.
“We can’t understand why SEEC would refuse to recognize, or address, or acknowledge the First Amendment and pre-emption issue, and we’re just looking to see if there are some documents that explain that,” he said in an interview Friday.
Mass Mailings
The controversy stems from the state Democratic Party’s mass mailings, late in the 2014 campaign, that were dominated by photos and assertions aimed at re-electing Malloy, but which also contained some small print telling voters when polls would be open on Election Day and what phone number they can call to get a ride to the polls.
Democrats said federal election laws required that the party’s “federal account” be used to pay for the mailings. That’s because they said such get-out-the-vote efforts could also help Democratic candidates for Congress, who were on the same ballot line with Malloy. It didn’t matter how small the print was for the get-out-the-vote message on the mailers, or that Malloy photos and literature dominated them, they said. Once the message was printed on them, federal campaign funds had to pay for them, they said.
Republicans called that a dodge, or end-around, to evade the state clean-election laws that Democrats once championed, including the ban on state contractors’ money going into state campaigns. They brought a lawsuit seeking an injunction against mailings in October, at the same time they filed the now-pending SEEC complaint. But the suit was quickly dismissed on the grounds that the GOP’s first avenue had to be with the SEEC.
The issue originally arose more than a year before the election – with a controversial September 2013 fundraising solicitation by Thomas May, the CEO of Northeast Utilities, now renamed Eversource Energy. May had emailed dozens of NU managers asking them to donate to the Democrats’ federal account for the specific purpose of supporting Malloy’s re-election. The solicitation raised about $50,000.
SEEC investigated a citizen’s complaint about May’s solicitation, and while the commission found that it didn’t violate the letter of the law, it said that it was “both offensive and disturbing and violate[d] the spirit and intent of the Connecticut State Contractor Ban.”
NU was on the SEEC’s list of state contractors whose executives are banned from contributing to state election campaigns, and several of the executives’ contributions would have been illegal if sent directly to the party’s state account, the SEEC said.
That investigation took the better part of a year, and the current investigation is, if anything, more complex. If it isn’t cut short by a settlement, it could last even longer.
The investigative subpoena that was authorized by the SEEC on March 17 apparently has not been served yet, and the SEEC isn’t naming any person or entity it may want to slap one on.
Golub said any subpoenas would be illegal now anyway, because the SEEC is legally required to act first on motions to dismiss the complaint that both the Democratic State Central Committee and the Malloy For Governor Campaign have filed. Those motions ask that the SEEC dismiss the Labriola complaint “for lack of subject matter jurisdiction” based on the assertion that the state election laws are “pre-empted” by federal law.
“I am very frustrated that there’s an important legal issue here that the party wants to get resolved and SEEC won’t address it with me. The issue is which law applies; does federal law apply, or does state law apply?” he said. “They’ve told me that they won’t decide it. I put in a motion, and they’ve ducked ruling on the motion.”
“What we really want to do,” Golub said, “is work out some kind of compromise, so there is a framework for going forward and everyone knows how to proceed.”
Malloy Vs. Watchdogs?
Malloy, as governor, is the de facto head of the state Democratic Party, and the Democrats’ current conflict with the SEEC isn’t the only controversy involving him and the election enforcement watchdog agency.
Another controversy stems from Malloy’s consolidation move in 2011 to merge the SEEC and eight other watchdog agencies, such as the FOI Commission and Office of State Ethics, into a new super-agency called the Office of Governmental Accountability. The superagency was supposed to save money by consolidating back-office operations and providing administrative support to the watchdogs, which became divisions of the new accountability office.
But it hasn’t saved much money. Instead, problems have arisen because the superagency is headed by a Malloy appointee, Executive Administrator Shelby Brown — and the watchdog agencies have bristled at being under the influence of a gubernatorial appointee.
The long-simmering issue boiled over last month when Brown, without warning, seized a computer from SEEC offices, saying some unauthorized and unexplained “commercial movies” were in it. Advocates for the SEEC and other watchdog agencies protested her confiscation of a computer that could have contained information relevant to the investigation of the Democrats’ funding of the 2014 Malloy effort. They said she should have reported the situation to the SEEC and left it to the agency’s director to investigate.
Malloy and his people have denied that putting a gubernatorial appointee over the watchdog agencies — several of which can investigate or make rulings affecting him and others in the executive branch — was intended to intimidate or control them.
Brown repeatedly has made it clear that she believes she answers to Malloy, who appointed her, rather than the Governmental Accountability Commission, which oversees her agency. And she says her seizure of the SEEC’s computer — now being held for safe keeping by the state’s top prosecutor, Chief State’s Attorney Kevin Kane — was not an overreach from what had been said to be her role of providing administrative support to the watchdogs.
No one can say who’s got the upper hand legally between Golub and the SEEC, but it’s fair to say that the public relations war over last year’s mailings and the recent computer seizure hasn’t been going Malloy’s way.
In an editorial this past week, The Record Journal of Meriden noted called the computer seizure “a big problem” because “the elections commission is now investigating whether the state Democratic Party illegally funneled state contractor contributions to Malloy’s 2014 re-election campaign.”
The editorial continued: “The question is, do we want actual accountability in our state government — or just window dressing, an agency with a nice-sounding name? By now it’s pretty clear that Malloy doesn’t really believe in governmental accountability, because if he did he would never have put the governor’s office in charge of those watchdog agencies.”
Jon Lender is a reporter on The Courant’s investigative desk, with a focus on government and politics. Contact him at jlender@courant.com, 860-241-6524, or c/o The Hartford Courant, 285 Broad St., Hartford, CT 06115 and find him on Twitter@jonlender.
