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ACLU, Lobbyists' Lawyer In Elections-Law Suit Seek Nearly $4 Million From State

Money Would Cover Amount Of Expenses They Say They Incurred In Case

Edmund H. Mahony

February 10, 2011

The minor political parties and lobbyists whose legal challenges overturned parts of Connecticut's historic campaign finance reform law want the state to pay nearly $4 million to cover their costs.

The challenges to the clean elections law now are 6 years old and have moved through the federal district court and the U.S. 2nd Circuit Court of Appeals. The U.S. Supreme Court has not said whether it will grant a further review requested by the minor political parties, led by the Green Party.

Costs, customarily paid by the losers in civil litigation, have become an issue even though there is no clear legal winner in the case. In one of his last acts as state attorney general, Richard Blumenthal — now Connecticut's junior U.S. senator — said in court that he might force the minor parties and lobbyists to pay part of the state's costs of defending the law.

Current Attorney General George Jepsen has said he is waiting to see what, if anything, happens at the U.S. Supreme Court before deciding whether to act on his predecessor's threat. On Wednesday, he filed legal papers attacking the minor party and lobbyist claims as excessive, unreasonable and, in one instance, "astonishing." He said they are entitled to no more than a combined $1.1 million.

The 2005 reform law and the litigation it engendered met significantly different results in the district and circuit courts.

The district court found the law unconstitutional because its scheme for public financing of campaigns left minor-party candidates unable to compete with major-party opponents. The circuit court disagreed on the public financing scheme and rejected as well a prohibition against political contributions by lobbyists. The circuit court also said the entire reform package would fall if the state legislature did not convene in special session in August to amend a particularly obtuse section.

The two courts combined to produce a legal split decision. But the lawyers representing the minor parties and the lobbyists — the American Civil Liberties Union and Farmington attorney R. Bartley Halloran, respectively — are arguing that they are the prevailing parties because, simply put, they won more than the state.

"The legislature ultimately amended the law after the decision came down from the 2nd Circuit," said Sandra Staub, legal director of the American Civil Liberties Union of Connecticut. "Our clients prevailed to the extent that the only reason the law wasn't struck down in its entirety is because the legislature took that action. If you look at the posture of the case from the beginning, we prevailed overall in terms of the challenge to the scheme of public financing that disadvantaged our clients."

The ACLU wants $2,808,970 and Halloran is asking for $826,755. Jepsen said they are entitled to no more than $522,484 and $455,730 respectively.

Both the ACLU and Halloran said in court papers that they have submitted deeply discounted bills for their time and costs, as well as the time of assistants, associates and paralegals. In nearly 300 pages of supporting documentation, the ACLU said it didn't bill for 1,335 hours to reflect, among other things, its "partial success" in the litigation. In Halloran's case, he said victory by the lobbyists was complete.

The top hourly rate billed by the ACLU was $475. Halloran said in court papers that he billed at $450 an hour and is not seeking reimbursement for far more than $6,000 in expenses.

Before leaving the attorney general's office in January, Blumenthal criticized the amount of the ACLU's claim by referring to its "very limited success" in challenging parts of the law that triggered the award of supplemental public campaign funds for candidates. In his first involvement in the case, Jepsen said in a legal filing that "a settlement conference may be productive in resolving the fee petitions."

U.S. District Judge Stefan Underhill, who heard the initial challenge to the campaign law, ultimately will settle the question of who pays what legal fees.