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December 23, 2008 12:41 PM

Hogan & Hartson Helps Uphold State 'Pay-to-Play' Ban

Posted by Brian Baxter

A federal court in Connecticut has upheld a state campaign finance law that bans lobbyists and contractors from making political contributions to candidates for state office. The law was part of broad-based campaign finance reform legislation passed in 2005 aimed at cleaning up Connecticut politics after a series of scandals forced the resignation of former Gov. John Rowland.

Hogan & Hartson and the Brennan Center for Justice at New York University School of Law served as pro bono cocounsel to Common Cause for Connecticut, a nonpartisan, nonprofit advocacy organization that intervened in the case.

"It is very gratifying that the court recognized the substantial state interest in banning contributions by lobbyists and contractors because they inevitably create the appearance of improperly influencing decisions by state officials," said lead Hogan & Hartson litigation partner Ira Feinberg in a statement announcing the victory.

The case grew out of two others filed in the summer of 2006. The first was brought by the American Civil Liberties Union (ACLU); the second was brought by the Association of Connecticut Lobbyists (ACL). Those two suits were consolidated that fall in U.S. district court in Bridgeport.

Represented by former ACLU lawyer Mark Lopez, now of New York's Lewis, Clifton & Nikolaidis, the ACLU argued that making a campaign contribution is protected First Amendment speech. While the U.S. Supreme Court has accepted limits on campaign contributions, it has never upheld a complete ban on certain contributions by individuals to a campaign. (Farmington, Conn.-based solo practitioner R. Bartley Halloran represents the ACL.)

Plaintiffs also attacked some of the details of the 2005 law at issue--the Connecticut Campaign Finance Reform Act--by stating that it shouldn't prevent spouses and children of family members from contributing because there wasn't sufficient evidence that they had in the past helped evade campaign finance restrictions.

The principal defendants in the action are the State of Connecticut itself, namely Jeffrey Garfield, executive director and general counsel of the state's elections enforcement commission. Perry Zinn-Rowthorn, an assistant attorney general under Connecticut Attorney General Richard Blumenthal, represents the state.

The Brennan Center sought to intervene in the case in 2006 with the goal of supporting the state on behalf of the Connecticut chapter of Common Cause, a citizen's action group, and several individual intervening defendants.

Feinberg says the Brennan Center was "deeply involved" in the political process to pass Connecticut's campaign finance law and wanted to demonstrate its continued support for its constitutionality. (The Brennan Center has also defended similar state public finance laws in Arizona, Maine, and North Carolina.)

"It's a big case and obviously it required a lot of resources, so the Brennan Center asked me and my firm to work as their cocounsel representing the intervening defendants and organizations," Feinberg says. "I ended up taking the lead on this aspect of the case in terms of briefing and arguing the case."

Feinberg presented oral arguments for summary judgment on March 4 and on December 19, U.S. district court judge Stefan Underhill released a mammoth 98-page opinion finding in favor of the defendants by upholding "pay-to-play" bans by lobbyists, contractors, their spouses, and children.

"Judge Underhill accepted pretty much everything that we were arguing," says Feinberg, who was assisted on the case by Hogan & Hartson litigation partner Lawrence Brocchini and Suzanne Novak, formerly of the Brennan Center. (Attorneys from Washington, D.C.'s Sonosky, Chambers, Sachse, Endreson & Perry, Wilmer Cutler Pickering Hale and Dorr, Democracy 21, and The Campaign Legal Center also represented intervening defendants.)

While the plaintiffs have yet to comment, Feinberg says there's "no doubt in his mind" that they'll pursue an appeal given the newfound significance of the case in light of recent events in Illinois.

"[This case] will clearly go up on appeal and present some issues that the [U.S.] Supreme Court could conceivably wind up having to resolve someday," Feinberg says. "Specifically, as to whether the state can ban contributions by individuals completely when they have certain access to state government as lobbyists and contractors to get special considerations from state officials."

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