(Continued from Citizen's Election Program Hearing: Restrictions on Contributions - Part 1.)

Around ten of twelve, Ira Feinberg began his oral arguments concerning the lobbyist restrictions of the Connecticut Citizen’s Election Program before the Second Circuit. He started off by acknowledging that Citizens United v. FEC, which is currently being considered by the U.S. Supreme Court could have an effect on the ruling, but since that case is primarily about corporate independent expenditures, it is not likely. Nonetheless, the Second Circuit might want briefings from the parties in the CEP case after a ruling is made by the U.S. Supreme Court.

Attorney Feinberg clarified Attorney Lopez’ remarks. Currently, CEP is enjoined. There is a stay, but that stay is only pending this court’s injunction. Attorney Feinberg noted that we are already in the middle of the 2010 election cycle. The primary is in August and candidates have been operating for a year based on the current program. It would be unfair, he suggested, to change shortly before the election. He did suggest that a declaratory ruling prior to the election with nothing injunctive happening until after the election could be a way to deal with this issue.

Judge Cabranes then peppered Attorney Feinberg with a litany of questions trying to get a clear sense of what is and is not permissible under the Citizen’s Election Program. He started off by asking about the President of the Connecticut Bar Association. Attorney Feinberg responded that the head of an organization like the Connecticut Bar Association is not restricted under CEP, only the lobbyists that work on behalf of the CBA. Judge Cabranes then rephrased his questions to be about a lobbyist for the State Bar. How would there an appearance of corruption is this individual contributed to a candidate?

Attorney Feinberg responded that one needs to look at the larger picture. Judge Carbanes talked about being limited like everyone else. Attorney Feinberg drew the distinction of the lobbyist being paid to influence legislators. Judge Carbanes drilled deeper. Can I lobbyist recommend that people vote for a candidate? Yes. Can a lobbyist recommend that people make contributions? No. Can a lobbyist recommend that people attend a fundraiser? No. Can a lobbyist inform people about an upcoming fundraiser? Yes.

This is a point that I need clarification on. I’ve been told that I cannot inform people about upcoming fundraisers since I am the spouse of a lobbyist. I hope that Attorney Feinberg’s comments are correct on this.

Judge Carbanes then asked if a lobbyist could recommend that a person contribute to a political party. Attorney Feinberg said yes, and there was whispering in the gallery. Judge Carbanes quipped that the record should reflect that Mr. Feinberg was in pain on answering that question. This led to a brief conference where there was additional clarification. A lobbyist can recommend that a person contribute to a national political party, but not to a state or local political party.

Focusing again on the aspect of political parties, Judge Carbanes asked if a lobbyist can recommend that people join a local or state party. Attorney Feinberg responded that that is permissible. The only prohibition is about fundraising activities.

Judge Carbanes asked if a lobbyist could help prepare an advertisement that recommends throwing someone out of office. This led to a discussion about whether the ad was a fundraising effort. If not, there is no issue. A lobbyist can contribute his time to a campaign. Judge Hall observed that time is money. Attorney Feinberg countered that in this context, it is not.

This led to an exploration of the nature of contributions as speech. Contributions meet a lesser standard of speech than other political activity. Judge Kearse noted that contributions are marginal speech while solicitations are informative speech.

The next issue that was explored was the aspect of lobbyists. Judge Carbanes observed that ‘lobbyist’ is often presented as a pejorative term. Why is this, he pondered. Why not call them First Amendment Practitioners? This idea received sum chuckles. However, Attorney Feinberg pointed out that there are only around seven hundred people in the State of Connecticut that are registered as lobbyists. These people have greater access to legislators and enough motivation to influence legislators to create an appearance of potential corruption.

Again, Judge Carbanes attempted to get a clearer understanding of what lobbyists can and cannot do. Can a lobbyist advise on a general campaign? Yes. Can a lobbyist advise on fundraising? No. Can a lobbyist advise on how to contact supporters of the organization that has hired the lobbyist about political views? Yes. Can a lobbyist advise on how to contact supporters of the same organization about making contributions? No. Can a lobbyist provide a list of members of the organization to the campaign? Yes.

At this point, Asst. Attorney General for the State of Connecticut, Harry Zimroth began his oral arguments. He noted that the legislature and Governor Rell, because of their experience in both fundraising and interacting with lobbyists were uniquely qualified to deal with this law. He also noted that after the Rowland era dealing with such a law became much more important.

Judge Carbanes followed up on a point from Attorney Lopez and asked if a lobbyist had ever committed crimes that this law seeks to address. Attorney Zimroth admitted that no lobbyist had committed such crimes but that such a law is necessary to restore confidence.

Judge Carbanes asked if this was an incumbent protection scheme. By limiting lobbyist contributions, the legislators would not be bugged by people that can have an effect.

Attorney Zimroth suggested the opposite, that it was a self inflicted wound. He noted that lobbyists as a whole almost never contribute to challengers. Instead, this changed the dynamic so that to gaining influence is now based on the merit of the ideas and not the political contributions that could be brought in. In doing so, it helps remove the taint of from lobbyists.

Judge Carbanes then asked why lobbyist would oppose this. Attorney Zimroth noted that not all lobbyists oppose this. He noted that some lobbyists, particularly those for nonprofit organizations support the law. As a personal note, my wife is a registered lobbyist in the State of Connecticut and supports this law. It seems to me that the distinction is that lobbyists who rely on the quality of their ideas support the law, and those that rely on their ability to raise funds do not support the law. Connecticut would be much better served is more lobbyists relied on the quality of their ideas instead of their ability to raise funds.

The next area that the judges explored was whether or not the complete ban on contributions was too broad. Attorney Zimroth noted it was actually very narrow and that there are similar bans in other states as well as on certain industries. It was justified to limit undue influence of lobbyists.

Judge Hall asked if it was justified to place similar limits on spouses or children of such lobbyists. Attorney Zimroth noted that spouses and children of lobbyists share in the benefits of the lobbyists’ influence. Judge Hall then asked if this rule applied to emancipated minors and Attorney Zimroth indicated it did not.

I should note that benefits that I receive as the spouse of a lobbyist working for a better government organization is primarily limited to a sense of well being that my wife and I are working together to make our state a better place. Better government organization jobs are generally not well paying jobs.

The final issue was whether or not this should apply to non-profit lobbyists. Attorney Zimroth noted that in the case of Sen. Newton, there was an effort to use non-profit organizations illegally, so he believed that an exception should not be made for non-profits.

During a final rebuttal, Attorney Lopez cited the example of the spouse of a lobbyist for the Connecticut Bar Association who gave up her position on the Colechester Town Committee and as treasurer for a State Representative because of this law. I can understand the concern. If the opportunity came to take a leadership role in my local town committee or to work on fundraising for various campaigns, I would like the chance to act upon it as well. However, forgoing such opportunities in supporting my wife’s efforts as a non-profit lobbyist is something I am willing to do in my desire for my wife to have the job she wants and for all of us to work together to make Connecticut government better.