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Markley v. State Elections Enforcement Commission

JOE MARKLEY ET AL. v. STATE ELECTIONS

ENFORCEMENT COMMISSION

(SC 20726)

Robinson, C. J., and McDonald, Mullins, Ecker and Alexander, Js.

Syllabus

The plaintiffs, M and S, candidates for state legislative offices in the 2014

general election, appealed to the trial court from the decision of the

defendant, the State Elections Enforcement Commission, which

assessed fines against the plaintiffs upon determining that they had

violated certain state statutes and regulations governing campaign

financing and the Citizens’ Election Program (program) (§ 9-700 et seq.).

The plaintiffs’ respective campaign committees had each applied for

and received public funding grants through the program. During the 2014

election cycle, the plaintiffs’ campaign committees published certain

communications and advertisements that made various references to

the record and policies of D, then the governor, who was running for

reelection at that time. The communications both touted the plaintiffs’

respective accomplishments and positions and referred to their opposition to the agenda advanced by D and D’s Democratic allies, including

tax hikes and increased spending. One of the communications highlighted votes taken by S’s opponent in the 2014 election, C, when C

was serving as a state representative. C filed a complaint with the

commission, alleging that the communications were impermissible campaign expenditures under the program. C relied on an advisory opinion

previously issued by the commission, in which it interpreted the statutes

(§§ 9-601b and 9-607 (g)) defining the term ‘‘expenditure’’ and governing

the permissibility of campaign expenditures, as well as the state regulations (§§ 9-706-1 and 9-706-2) implementing the program, and concluded

that, in the absence of a statutory exception to the definition of ‘‘expenditure,’’ funds in a candidate committee’s account may not be used to

make a communication that is not directly related to the candidate’s

own electoral race and that also promotes the defeat of or attacks a

candidate who is not a direct opponent of the candidate sponsoring the

communication but who is running in a different race. After a hearing,

the commission found that the plaintiffs had violated the applicable

statutes and regulations by using their candidate committee funds to

pay for communications that criticized D in the course of promoting

their opposition to D’s policies. On appeal to the trial court, the plaintiffs

claimed that the statutes and regulations imposing expenditure limitations as a condition of receiving public funding violated their rights

under the first amendment to the United States constitution by restricting

their ability to speak about other, nonopposing candidates. The trial

court agreed with the commission’s conclusion that the plaintiffs had
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violated the applicable statutes and regulations, insofar as the communications constituted the functional equivalent of express advocacy for

the defeat of D in his reelection bid, and the trial court further concluded

that the program constituted a valid, alternative route by which the

plaintiffs voluntarily had elected to exercise their first amendment rights

and that the program’s conditions did not abridge those rights. Accordingly, the trial court rendered judgment upholding the commission’s

decision, from which the plaintiffs appealed. On appeal, the plaintiffs

claimed, inter alia, that the commission’s enforcement of the applicable

statutes and regulations to preclude publicly funded candidates from

using their candidate committee funds to pay for campaign communications, which, as a rhetorical device, invoke the name of a candidate in

a different electoral race to refer more broadly to the policies or political

party associated with that candidate, violated their first amendment

rights.

Held that the commission’s enforcement of the applicable statutes and

regulations in accordance with its advisory opinion imposed an unconstitutional condition in violation of the first amendment to the extent that

it penalized the plaintiffs for mentioning D’s name in a manner that was

not the functional equivalent of speech squarely directed at D’s reelection

campaign, and, accordingly, this court reversed the trial court’s judgment

and remanded the case with direction to sustain the plaintiffs’ administrative appeal:

Following an examination of the United States Supreme Court’s decisions

considering the constitutionality of various campaign finance reform

laws under the first amendment and a discussion of the unconstitutional

conditions doctrine, pursuant to which the government may not deny a

benefit to a person on a basis that infringes his or her constitutionally

protected freedom of speech, even if that person is not otherwise entitled

to such a benefit, this court observed that, although laws that burden

political speech, including expenditure limitations, ordinarily are subject

to strict scrutiny, candidates who voluntarily accept public campaign

funding also accept reasonable terms and conditions attendant to such

programs that otherwise may abridge their free speech rights.

Nevertheless, the fact that a candidate voluntarily participates in a government program is not dispositive of the first amendment issue, when, as

in the present case, the program restrictions at issue are not generalized

expenditure limits but, rather, directly govern the specific content of

a publicly financed candidate’s communications, and, because public

campaign financing laws that restrict political expression operate to

burden a candidate’s core first amendment speech, the court must look

beyond voluntariness and apply strict scrutiny to determine whether the

restrictions are narrowly tailored to achieve the traditional goals of public

campaign financing, namely, promoting participation in the campaign

financing program, reducing fundraising burdens and the corrupting
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Markley v. State Elections Enforcement Commission

effects of contributions and the pursuit of contributions on government

decision making, facilitating candidate communications with the electorate, and protecting the fiscal integrity of the program.

Prohibiting publicly funded candidates from engaging in campaign

speech concerning other electoral races survives strict scrutiny if it is

narrowly tailored to protect the public fisc by enforcing the limitations

of the program, and limitations on campaign speech that refer to a

candidate in another race are narrowly tailored to achieve that compelling state interest only when the speech at issue is unquestionably the

functional equivalent of express advocacy or campaign speech concerning the candidate involved in the other race, rather than a rhetorical

device intended to communicate where the speaker stands on the issues.

Moreover, this court recognized that candidates must be able to communicate where they stand on issues in relation to other candidates and

public officials, and invoking prominent political figures by name will

sometimes provide the most meaningful and effective way for a candidate

to explain to voters their political ideals, policy commitments, and the

values they hope to bring to the office they seek, even if some of those

political figures may happen to be candidates elsewhere on the ballot

in a particular election, and the rhetorical value of being able to categorize

oneself in relation to other political candidates is especially great in

state legislative races.

Nonetheless, the commission could apply the standard articulated in its

advisory opinion to preclude publicly funded candidates from using

committee funds to promote the defeat of or to attack a candidate who

is not a direct opponent of the candidate sponsoring the communication

but who is engaged in a different electoral race, as that standard was

not, on its face, an unconstitutional condition in violation of the first

amendment, to the extent that it ensured that public funds are spent

only on qualifying campaigns without exceeding the amount of the grant

allotted per race, but, if that standard is applied in a way that muzzles

a publicly funded candidate’s political speech beyond that necessary to

prevent the funding of campaign speech with respect to a clearly identified candidate running in a different electoral race, it is a content based

restriction that is an unconstitutional condition in violation of the

first amendment.

In determining whether campaign communications by a publicly funded

candidate who uses the name of a candidate engaged in a different

electoral race as a rhetorical device to refer to a set of policies opposed

or supported by the publicly funded candidate constitutes impermissible

electoral communications, rather than a constitutionally protected message in direct furtherance of the publicly funded candidate’s own campaign for office, this court relied on the opinion announcing the judgment

of the United States Supreme Court in Federal Election Commission v.
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Wisconsin Right to Life, Inc. (551 U.S. 449), which held that a court

should find that a campaign communication is the functional equivalent

of express advocacy of election or defeat of a candidate, rather than

permissible discussion of issues and candidates who are intimately tied

to public issues, only if the communication is susceptible of no reasonable

interpretation other than as an appeal to vote for or against a specific candidate.

Furthermore, the functional equivalent of express advocacy standard is

objective and focuses on the substance of the communication rather

than on its effect or considerations of the speaker’s intent to affect the

election, and, although the distinction between permissible discussion

of issues and candidates, on the one hand, and prohibited advocacy of

election or defeat of candidates, on the other, may often dissolve in

practical application, the functional equivalency standard gives the benefit of the doubt to protecting rather than stifling speech, such that, when

the first amendment is implicated, the tie goes to the speaker rather

than the censor.

With respect to the communications and advertisements at issue, this

court concluded that they were not the functional equivalent of express

advocacy with respect to D’s reelection, insofar as they could not reasonably be construed as anything more than a rhetorical device intended

to communicate the merits of the plaintiffs’ candidacies as bulwarks

against the policies endorsed by D and his Democratic allies.

Three of the communications at issue revealed nothing that rendered

them the functional equivalent of express advocacy with respect to D’s

reelection, as they lacked any express references thereto, did not suggest

that a vote for C would be tantamount to a vote for D or Democratic

Party policies, and did not indicate in any way that D was running for

reelection in 2014 or that support for the plaintiffs would be integral to

defeating the candidacy of D or any other Democrat seeking office,

and, instead, those communications highlighted the plaintiffs’ role as a

legislative check and balance against policies endorsed by D and his

Democratic allies, such that the communications did not convey a different meaning in 2014, when D was running for reelection as an incumbent,

than they would have conveyed during the 2012 or 2016 midterm election

cycles, when D was simply serving as the governor.

Although the remaining two communications presented a closer question,

insofar as they either used words somewhat evocative of an ongoing

negative campaign against D, such as promoting a new direction and

imploring voters to ‘‘change course’’ and stop D’s agenda, or expressly

referred to D’s campaign for governor, this court could not concluded

that those communications were the functional equivalent of express

advocacy with respect to D’s reelection because they reasonably might

be understood as urging electoral resistance to the leadership and initia-
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tives of D and his Democratic allies, and, to the extent that the references

to ‘‘change’’ and a ‘‘campaign’’ could be understood to be the functional

equivalent of express advocacy, the tie went to the speakers, that is,

the plaintiffs.

Argued September 13, 2023—officially released May 21, 2024

Procedural History

Appeal from a decision of the defendant finding the

plaintiffs in violation of state election laws and regulations, brought to the Superior Court in the judicial district of New Britain, where the court, Joseph M. Shortall,

judge trial referee, granted the defendant’s motion to

dismiss and, exercising the powers of the Superior

Court, rendered judgment dismissing the action, from

which the plaintiffs appealed; thereafter, this court

reversed the trial court’s judgment and remanded the

case for further proceedings; subsequently, the case

was and tried to the court, Hon. Joseph M. Shortall,

judge trial referee, who, exercising the powers of the

Superior Court, rendered judgment affirming the decision of the defendant, from which the plaintiffs appealed.

Reversed; judgment directed.

Charles Miller, pro hac vice, with whom were Mario

Cerame and, on the brief, Adam J. Tragone, pro hac

vice, for the appellants (plaintiffs).

Maura Murphy Osborne, deputy associate attorney

general, with whom, on the brief, was William Tong,

attorney general, for the appellee (defendant).

Opinion

ROBINSON, C. J. This appeal presents an issue of

first impression under the first amendment to the United

States constitution, namely, the extent to which the statutes and regulations governing the public funding of

state elections in connection with the Citizens’ Election

Program (program), General Statutes § 9-700 et seq.,

may be applied to preclude publicly funded candidates
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from using their candidate committee funds to pay for

campaign advertisements that, as a rhetorical device,

invoke the name of a candidate in a different race to refer

more broadly to the policies or political party associated

with that candidate. The defendant, the State Elections

Enforcement Commission (commission), imposed fines

on the plaintiffs, Joe Markley and Rob Sampson, who

were publicly funded candidates for state legislative

office during the 2014 general election cycle, on the

ground that they had violated the statutes and regulations governing the program when they utilized their

candidate committee funds to pay for communications

that criticized then Governor Dannel Malloy, who was

seeking reelection to that office in that same election

cycle, in the course of promoting their opposition to

his policies. The plaintiffs now appeal1 from the judgment of the trial court upholding the decision of the

commission, claiming that the commission’s enforcement of the state election laws in that manner violated

their first amendment rights. Although a compelling

governmental interest is served by a condition that precludes publicly funded candidates from using program

funds to support or oppose candidates in other races,

we conclude that the commission violated the plaintiffs’

first amendment rights with respect to the five advertisements at issue in this case because they could reasonably be understood to be something other than an

appeal to vote against Governor Malloy. Accordingly,

we reverse the judgment of the trial court.

The record reveals the following undisputed facts

and procedural history. During the 2014 general election

cycle, Markley was an unopposed candidate for state

senator from the Sixteenth Senatorial District and registered the candidate committee ‘‘Joe Markley for State

1 The plaintiffs appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to General

Statutes § 51-199 (c) and Practice Book § 65-1.
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Senate 2014.’’ Sampson, who was an incumbent state

representative from the Eightieth General Assembly

District, was seeking reelection to that office during the

2014 general election cycle and registered the candidate

committee ‘‘Sampson for CT.’’ Sampson’s opponent in

that race was John ‘‘Corky’’ Mazurek, who is the complainant before the commission in this case. Each of

the plaintiffs’ campaign committees applied for and

received public funding grants from the program, Markley in the amount of $56,814, and Sampson in the

amount of $27,850.

During the 2014 general election cycle, the plaintiffs

published five communications or advertisements that

are at issue in this appeal. The first communication,

exhibit 2 before the commission, was a large, doublesided postcard, jointly paid for by the plaintiffs’ respective committees, the back side of which stated that

the plaintiffs ‘‘are who we need to turn Connecticut

around!’’ In addition to touting the plaintiffs’ work as

state legislators on behalf of Southington’s schools,

seniors, and veterans, and their opposition to criminal

justice reforms and the New Britain ‘‘[b]usway [b]oondoggle,’’ the back of the mailer states that they have

(1) ‘‘consistently fought’’ Governor Malloy’s ‘‘tax hike,’’

‘‘agenda,’’ and ‘‘reckless spending,’’ (2) ‘‘tried to restore

[c]ommon [s]ense and fiscal responsibility in state government,’’ and (3) ‘‘voted against [Governor Malloy’s]

budget which resulted in nearly $4 [b]illion in new and

increased taxes for Connecticut residents.’’

The second communication, exhibit 3 before the commission, is a trifold flyer that was jointly funded by and

mentions both plaintiffs but focuses largely on Sampson’s legislative accomplishments with respect to the

towns of Southington and Wolcott and his endorsements by a variety of organizations. It states that both

plaintiffs have fought for fiscally conservative positions

and ‘‘continue to work to eliminate needless regulations
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and burdensome taxes and fees. Rather than accepting

the job and business stifling proposals of Governor

Malloy, [the plaintiffs] have pushed for less government

and more freedom in an effort to get our economy

moving again. . . . [The plaintiffs] are who we need

in Hartford fighting for our community and to keep

Governor Malloy and the [m]ajority Democrats in

check.’’ The flyer’s reverse side emphasizes that Sampson specifically ‘‘has fought Governor Malloy’s ‘Bad

for Connecticut Agenda,’ opposing [h]uge [i]ncreases

in [g]overnment [s]pending, the [h]ighest [t]ax [i]ncrease

in Connecticut [h]istory, the New Britain to Hartford

[b]usway, the repeal of the [d]eath [p]enalty, and the

[e]arly [r]elease of [v]iolent [c]riminals.’’

The third communication, exhibit 4 before the commission, is an oversize postcard that features only

Sampson and was paid for by Sampson’s committee. It

states that ‘‘Sampson wants a [n]ew [d]irection and

rejects Governor Malloy’s policies,’’ and that ‘‘[i]t’s time

to change course and STOP Governor Malloy and the

majority Democrats’ dangerous agenda!’’ (Emphasis in

original.) Positing that ‘‘[w]e need leaders like [Sampson] who know how to say NO,’’ the mailer further

states that Sampson ‘‘has consistently fought Governor

Malloy’s reckless spending and voted against his budget

which resulted in nearly $4 [b]illion in new and increased

taxes for Connecticut residents!’’ (Emphasis in

original.)

The fourth communication, exhibit 5 before the commission, is an oversize, glossy foldout postcard, which

features only Sampson and was paid for by Sampson’s

committee. In addition to highlighting Sampson’s fiscal

conservatism and organizational endorsements, it states

that he ‘‘has been a clear and consistent voice for common sense in Hartford, fighting Governor Malloy’s

destructive policies of wasteful spending and high

taxes.’’ It also highlights some of Mazurek’s positions,
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including votes taken when Mazurek previously served

as a state representative, observing that a ‘‘vote for

[Mazurek] is a vote to continue the reckless policies

that are ruining our state’’ because (1) ‘‘[h]is last vote

as our [s]tate [r]epresentative was to flip his own vote

from no to yes and [to] give an additional $3 million

dollars to [Governor] Malloy’s campaign for [g]overnor,’’ (2) ‘‘[h]e supported Governor Malloy’s ‘largest tax

increase in history’ state budget in 2012 saying ‘[t]he

Democrats put forward a very good plan to mitigate the

budget deficit,’ ’’ (3) ‘‘[h]e supports Governor Malloy’s

corporate welfare programs including $400 [million] in

taxpayer funds taken from our community and small

businesses to give to [United Technologies Corporation] saying ‘Connecticut’s economy is clearly the winner as a result of this legislation,’ ’’ and (4) ‘‘[i]n 2010,

he voted to balance Connecticut’s state budget by borrowing [$1] billion . . . piling more debt onto taxpayers and our children.’’

The fifth communication, exhibit 6 before the commission, is a local newspaper advertisement that was

paid for by Sampson’s committee. That advertisement

featured a photograph of Sampson and emphasizes his

‘‘commonsense leadership’’ and his work to help ‘‘Wolcott receive its fair share of state aid to keep property

taxes in check and our schools at their peak.’’ In asking

for Wolcott residents’ vote, Sampson stated that he

was ‘‘proud to have led the fight against the many bad

policies put forth by [Governor] Malloy and the Democrats in Hartford.’’

Mazurek filed a complaint with the commission, alleging that these five communications2 violated the statutes and regulations governing campaign finance and

2 The complaint also identified a sixth communication, namely, a mailer

jointly funded by the committees of both plaintiffs. The commission dismissed the complaint with respect to the sixth communication, concluding

that it did not violate the campaign finance statutes and regulations. That

sixth communication is not at issue in this appeal.
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the program under chapters 155 and 157 of the General

Statutes, including General Statutes § 9-601b,3 which

defines the term ‘‘expenditure,’’ General Statutes § 9-

607 (g),4 which governs which expenditures are ‘‘[p]ermissible,’’ General Statutes (Rev. to 2013) 9-616 (a),5

3 General Statutes § 9-601b provides in relevant part: ‘‘(a) As used in this

chapter and chapter 157, the term ‘expenditure’ means:

‘‘(1) Any purchase, payment, distribution, loan, advance, deposit or gift

of money or anything of value, when made to promote the success or defeat

of any candidate seeking the nomination for election, or election, of any

person or for the purpose of aiding or promoting the success or defeat of

any referendum question or the success or defeat of any political party;

‘‘(2) Any communication that (A) refers to one or more clearly identified

candidates, and (B) is broadcast by radio, television, other than on a public

access channel, or by satellite communication or via the Internet, or as a

paid-for telephone communication, or appears in a newspaper, magazine

or on a billboard, or is sent by mail; or

‘‘(3) The transfer of funds by a committee to another committee.

‘‘(b) The term ‘expenditure’ does not mean:

***

‘‘(7) A communication described in subdivision (2) of subsection (a) of

this section that includes speech or expression made (A) prior to the ninetyday period preceding the date of a primary or an election at which the

clearly identified candidate or candidates are seeking nomination to public

office or position, that is made for the purpose of influencing any legislative

or administrative action, as defined in section 1-91, or executive action, or

(B) during a legislative session for the purpose of influencing legislative

action . . . .’’ 4 General Statutes § 9-607 (g) provides in relevant part: ‘‘Permissible expenditures. (1) As used in this subsection, (A) ‘the lawful purposes of the

committee’ means: (i) For a candidate committee or exploratory committee,

the promoting of the nomination or election of the candidate who established

the committee . . . .

‘‘(2) Unless otherwise provided by this chapter, any treasurer, in accomplishing the lawful purposes of the committee, may pay the expenses of: (A)

Advertising in electronic and print media; (B) any other form of printed

advertising or communications including ‘thank you’ advertising after the

election; (C) campaign items, including, but not limited to, brochures, leaflets, flyers, invitations, stationery, envelopes, reply cards, return envelopes,

campaign business cards, direct mailings, postcards, palm cards, ‘thank you’

notes, sample ballots and other similar items . . . .’’ 5 General Statutes (Rev. to 2013) § 9-616 (a) provides in relevant part: ‘‘A

candidate committee shall not make contributions to, or for the benefit of,

(1) a party committee, (2) a political committee, (3) a committee of a

candidate for federal or out-of-state office, (4) a national committee, or (5)

another candidate committee except that (A) a pro rata sharing of certain

expenses in accordance with subdivision (1) of subsection (b) of section

9-610 shall be permitted . . . .’’ (Emphasis added.)
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which bars candidate committees from making certain

contributions, and §§ 9-706-1 and 9-706-2 of the Regulations of Connecticut State Agencies,6 which implement

the program, as they had been previously interpreted

Hereinafter, all references to § 9-616 are to the 2013 revision of the statute.

6 Section 9-706-1 of the Regulations of Connecticut State Agencies provides

in relevant part: ‘‘(a) All funds in the depository account of the participating

candidate’s qualified candidate committee, including grants and other matching funds distributed from the Citizens’ Election Fund, qualifying contributions and personal funds, shall be used only for campaign-related

expenditures made to directly further the participating candidate’s nomination for election or election to the office specified in the participating

candidate’s affidavit certifying the candidate’s intent to abide by Citizens’

Election Program requirements.’’ (Emphasis added.)

Section 9-706-2 of the Regulations of Connecticut State Agencies provides

in relevant part: ‘‘(a) In addition to the requirements set out in section 9-

706-1 of the Regulations of Connecticut State Agencies, participating candidates and the treasurers of participating candidates shall comply with the

following citizens’ election program requirements. Permissible campaignrelated expenditures shall include but are not limited to expenditures for

the following:

‘‘1. Purchase of political campaign advertising services from any communications medium, including but not limited to newspaper, television, radio,

billboard or internet;

‘‘2. Political campaign advertising expenses, including but not limited to

printing, photography, or graphic arts related to flyers, brochures, palm

cards, stationery, signs, stickers, shirts, hats, buttons, or other similar campaign communication materials;

‘‘3. Postage and other commercial delivery services for political campaign

advertising . . . .

***

‘‘(b) In addition to the requirements set out in section 9-706-1 of the

Regulations of Connecticut State Agencies, participating candidates and the

treasurers of such participating candidates shall comply with the following

citizens’ election program requirements. Participating candidates and the

treasurers of such participating candidates shall not spend funds in the

participating candidate’s depository account for the following:

***

‘‘8. Contributions, loans or expenditures to or for the benefit of another

candidate, political committee or party committee ....

‘‘10. Any expenditure made in conjunction with another candidate for

which the participating candidate does not pay his or her proportionate

share of the cost of the joint expenditure . . . .

***

‘‘13. Independent expenditures to benefit another candidate;

‘‘14. Expenditures in violation of any federal, state or local law . . . .’’

(Emphasis added.)
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by the commission in Advisory Opinion No. 2014-04

(Advisory Opinion).7 In particular, the Advisory Opinion

7 On October 17, 2014, the commission issued the Advisory Opinion ‘‘to

respond to requests for clarification regarding the ability of candidates in

the [program] to make expenditures for communications that refer to—and

oppose or feature in a negative light—other candidates who are not their

direct opponents.’’ The commission relied on its previous Declaratory Ruling

No. 2011-03, which ‘‘addressed when and how to allocate and report certain

communications that reference or include more than one candidate,’’ observing that the request under consideration had ‘‘a critical difference: here,

the candidate proposed to be featured in the communication is not being

promoted by the communication (but, rather, is being opposed) and is not

a direct opponent of the candidate making the communication. An example

would be a state senate candidate producing an ad that promoted such

candidate but also disparaged a candidate for [the] governor’s policies and

performance, or an ad that claimed that if the challenging gubernatorial

candidate won the election, the state would not perform well economically.’’

Following a comprehensive discussion of the applicable statutes and

regulations, the Advisory Opinion emphasized the voluntary nature of a

candidate’s agreement to follow the program’s restrictions; see Regs. Conn.

State Agencies § 9-706-1 (a); in positing that it is ‘‘particularly important

for participating candidates to avoid spending campaign funds to promote

another candidate and to refrain from accepting in-kind contributions in

the form of advertising from other candidates that might cause an expenditure limit violation.’’ The commission further observed that, under a 2013

amendment to the definition to ‘‘expenditure’’ in General Statutes § 9-601

(25) to include negative as well as positive communications, although ‘‘the

candidate committee of a [program] participant may not attack candidates

opposing other members of such candidate’s party, the state central committees, the town committees, and any candidates in the race directly opposing

the candidate being attacked may all bear the portion of the cost allocated to

the negative advertising. . . . Legislative leadership and legislative caucus

committees may also bear the cost of negative advertising against opponents

in General Assembly races.’’ (Citations omitted.)

The commission ultimately concluded that, ‘‘[u]nless such an exception

[to the definition of expenditure] applies, when a [program] candidate

makes a communication that is not directly related to the candidate’s own

race and that also promotes the defeat of or attacks a candidate [who] is

not a direct opponent of the candidate sponsoring the communication, but

is in a different race, then the cost of that communication must be properly

allocated.’’ (Emphasis added.) As an example of the application of this

rule, including the permissible allocation of costs for otherwise precluded

expenses pursuant to its Declaratory Ruling No. 2011-03, the commission

posited that, ‘‘if participating state senate candidate Jones ran an ad disparaging participating gubernatorial candidate Smith, it would generally not be

considered a permissible expenditure by Jones’ candidate committee. If

candidate Jones wishes to produce such an ad, it would be permissible if

it were paid for jointly with a committee that could legally support candidate
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considered § 9-706-1 (a) of the regulations, which limits

the use of ‘‘[a]ll funds in the [candidate committee’s]

depository account’’ to ‘‘campaign-related expenditures

made to directly further the participating candidate’s

nomination for election or election to the office specified in the participating candidate’s affidavit certifying

the candidate’s intent to abide by [the program’s]

requirements,’’ and § 9-706-2 (b) (8) of the regulations,

which provides that those funds may not be used for

‘‘[c]ontributions, loans or expenditures to or for the

benefit of another candidate, political committee or

party committee . . . .’’ (Emphasis added.) The Advisory Opinion concluded that, in the absence of a statutory exception to the definition of ‘‘expenditure,’’ those

candidate funds could not be used to make ‘‘a communication that is not directly related to the candidate’s own

race and that also promotes the defeat of or attacks a

candidate [who] is not a direct opponent of the candidate sponsoring the communication, but is in a different race . . . .’’ (Emphasis added.)

Following a contested case hearing, the commission

issued a decision, in which it considered the governing

statutes and regulations as interpreted by its Advisory

Opinion and concluded that the five communications

were impermissible expenditures for a program candidate because they ‘‘clearly identify a candidate from

another race (Governor Malloy) within ninety days of

an election. . . . When mentioned, Governor (and candidate) Malloy was consistently identified with ‘bad’ and

‘destructive policies,’ ‘reckless’ and ‘wasteful spending,’

[and] as [being] responsible for removing ‘[c]ommon

[s]ense and fiscal responsibility’ from state government,

as well as for the ‘largest tax increase in history,’ among

Smith’s opponent or oppose candidate Smith. In this example, that could

be the candidate committee of Smith’s opponent, or alternatively could be

a state central committee, or any town committee—all of which may make

organization expenditures opposing candidate Smith.’’
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other dubious accomplishments. . . . In other words,

[the communications] opposed Governor Malloy, who

was a candidate. Whether measured by either definition

of ‘expenditure,’ such communications were covered.’’

(Citations omitted.) The commission further observed

that the plaintiffs had not made any efforts to allocate

a pro rata share of the otherwise impermissible expenditures to an appropriate party committee or candidate

opposed to Governor Malloy. Accordingly, the commission ordered each of the plaintiffs to pay civil penalties

within ninety days of its decision.8 The commission

subsequently denied the plaintiffs’ motion for reconsideration.

The plaintiffs brought an administrative appeal from

the final decision of the commission to the trial court

pursuant to General Statutes § 4-183, claiming that ‘‘the

expenditure limitations imposed as conditions of their

receipt of public campaign funding’’ violated their first

amendment rights ‘‘by restricting [their] ability to speak

about other, nonopposing candidates.’’9 (Internal quota8 Emphasizing that candidates take an oath to follow the statutory and

regulatory requirements of the program as a condition of accepting public

funding, the commission also observed that candidates are personally

responsible under General Statutes § 9-703 (a) (2) to reimburse the program

for impermissible expenditures by their committees. After considering certain mitigating circumstances, namely, the plaintiffs’ accurate disclosures

of their expenses and lack of history of noncompliance, the commission

ordered Markley to pay a civil penalty in the amount of $1000 for each of

two violations, for an aggregate civil penalty in the amount of $2000, and

Sampson to pay a civil penalty in the amount of $1000 for each of five

violations, for an aggregate civil penalty in the amount of $5000.

The commission also ordered Markley’s treasurer, Barbara P. Roberts,

who was a respondent, to ‘‘henceforth strictly comply’’ with the applicable

statutes and regulations. Scott M. Cleary, who was Sampson’s treasurer

and another respondent in this matter, resolved his matter separately with

the commission. 9 The trial court initially rendered judgment dismissing the plaintiffs’

administrative appeal as untimely under § 4-183 (b). The plaintiffs appealed

from that judgment of dismissal, which we subsequently reversed in 2021,

directing the trial court to consider the merits of the appeal on remand.

See Markley v. State Elections Enforcement Commission, 339 Conn. 96,

101, 112, 259 A.3d 1064 (2021).
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tion marks omitted.) Applying the standard articulated

in Chief Justice John Roberts’ opinion in Federal Election Commission v. Wisconsin Right to Life, Inc., 551

U.S. 449, 469–70, 127 S. Ct. 2652, 168 L. Ed. 2d 329 (2007)

(opinion announcing judgment) (Wisconsin Right to

Life), the trial court first engaged in the ‘‘ ‘independent

examination’ ’’ sought by the plaintiffs and concluded

that, as a factual matter, the communications ‘‘were

both an exhortation to vote for [the plaintiffs] and the

‘functional equivalent of express advocacy’ for the

defeat of Governor Malloy.’’ (Emphasis in original.)

Thus, the trial court concluded that the commission

had correctly determined that, as a factual matter, the

plaintiffs had violated General Statutes (Rev. to 2013)

§ 9-616 (a) (5) and §§ 9-706-1 (a) and 9-706-2 (b) (8)

of the Regulations of Connecticut State Agencies. See

footnotes 5 and 6 of this opinion.

The trial court then considered whether this application of the statutes and regulations violated the plaintiffs’ first amendment rights. Relying heavily on the

United States Supreme Court’s landmark decision in

Buckley v. Valeo, 424 U.S. 1, 96 S. Ct. 612, 46 L. Ed. 2d

659 (1976), Republican National Committee v. Federal

Election Commission, 487 F. Supp. 280 (S.D.N.Y.), aff’d,

445 U.S. 955, 100 S. Ct. 1639, 64 L. Ed. 2d 231 (1980),

and Corren v. Condos, 898 F.3d 209 (2d Cir. 2018), the

trial court concluded that the program constitutes a

valid alternative route by which the plaintiffs had

elected to exercise their first amendment rights and

that the program’s conditions did not abridge those

rights. The trial court emphasized that ‘‘the plaintiffs

[could] still express support for or against other candidates through their own unlimited expenditures and

any properly coordinated expenditures. So, in limiting

their prohibition of such expenditures to the funds in

the candidate committee’s depository [account], the

statute and regulations in question have narrowly tai-
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lored the prohibition to serve the legitimate state interest in ensuring that public funds are spent only to serve

the purpose for which they were granted in the first

place, namely, to support the campaign of the candidate

who requested them.’’10 Accordingly, the trial court rendered judgment affirming the decision of the commission. This appeal followed.

On appeal, the plaintiffs rely on Buckley v. Valeo,

supra, 424 U.S. 1, along with the United States Supreme

Court’s more recent decisions in Citizens United v.

Federal Election Commission, 558 U.S. 310, 130 S. Ct.

876, 175 L. Ed. 2d 753 (2010), and Federal Election

Commission v. Wisconsin Right to Life, Inc., supra,

551 U.S. 449, and contend that ‘‘[l]imits or prohibitions

on expenditures are burdens on political speech that

are subject to strict scrutiny.’’ Emphasizing the ‘‘highly

effective’’ rhetorical value in ‘‘summarily describ[ing]’’

a candidate’s views by reference to ‘‘a better known

candidate appearing elsewhere on the ballot,’’ they

claim that the commission’s enforcement of the statutes

and regulations to the effect that ‘‘the mere mention of a

nonopposing candidate’s name in campaign materials’’

constitutes an actionable violation, affects ‘‘core political speech’’ without justification by a compelling governmental interest, and, therefore, violates the first

amendment. The plaintiffs further contend that, even

if viewed as a properly imposed condition on the acceptance of public funds for participation in the program,

the commission’s decision in this case violates the first

amendment because, under Wisconsin Right to Life,

the mere mention of another candidate’s name in a

10 The trial court rejected the plaintiffs’ characterization of ‘‘the prohibitions on the use of candidate committee funds to promote the cause of a

candidate other than the one who established the committee as ‘contentbased’ restrictions, i.e., ‘those that target speech based on its communicative

content,’ ’’ which, under Reed v. Gilbert, 576 U.S. 155, 163, 135 S. Ct. 2218, 192

L. Ed. 2d 236 (2015), are presumptively unconstitutional unless ‘‘ ‘narrowly

tailored to serve compelling state interests.’ ’’
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campaign communication is not the ‘‘functional equivalent’’ of ‘‘advocacy for or against’’ that candidate’s election in a different race. They contend, therefore, that the

trial court improperly relied on leading unconstitutional

conditions cases, namely, Rust v. Sullivan, 500 U.S.

173, 111 S. Ct. 1759, 114 L. Ed. 2d 233 (1991), and Regan

v. Taxation with Representation of Washington, 461

U.S. 540, 103 S. Ct. 1997, 76 L. Ed. 2d 129 (1983), to

uphold the conditions imposed by the commission in

its Advisory Opinion and enforced in this case.

In response, the commission cites Buckley’s footnote

65; see Buckley v. Valeo, supra, 424 U.S. 57 n.65; and

several decisions from the federal courts of appeals,

including Corren v. Condos, supra, 898 F.3d 209, and

relies on the voluntary nature of the program in arguing

that ‘‘[c]onditions on expenditures contained in public

financing programs do not even implicate the first

amendment, and, even if they do, they do not violate

it. The relinquishment of core first amendment rights

to unlimited speech and unlimited fundraising are at

the heart of every public financing program.’’ Positing

that the plaintiffs seek to establish a ‘‘loophole’’ that

would undermine the program by ‘‘[a]llowing unlimited

attack ads in other races funded with [program] funds,’’

the commission contends that reducing public corruption and protecting the public fisc by preventing the

circumvention of program requirements are compelling

state interests supporting the restriction. It also emphasizes that its application of the ‘‘ ‘direct furtherance’ ’’

condition to program grants does not entirely foreclose

participating candidates from using messaging like that

at issue in this case because they remain free to ‘‘allocate

and share [those] costs with other spenders,’’ including

their own personal funds, state and town committees,

and appropriate candidates, such as Governor Malloy’s

opponents in the 2014 election. We agree with the plaintiffs, however, and conclude that the commission’s
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enforcement of the program statutes and regulations

in accordance with its Advisory Opinion imposed an

unconstitutional condition in violation of the first amendment to the extent that it penalized the mention of

Governor Malloy’s name in a manner that was not the

functional equivalent of speech squarely directed at his

reelection campaign.

‘‘Fundamental first amendment principles guide our

analysis of the [plaintiffs’] claims in this appeal. The

[f]irst [a]mendment, applicable to the [s]tates through

the [due process clause of the] [f]ourteenth [a]mendment, provides that Congress shall make no law . . .

abridging the freedom of speech. The hallmark of the

protection of free speech is to allow free trade in ideas—

even ideas that the overwhelming majority of people

might find distasteful or discomforting. . . . Thus, the

[f]irst [a]mendment ordinarily denies [the government]

the power to prohibit dissemination of social, economic

and political doctrine [that] a vast majority of its citizens

believes to be false and fraught with evil consequence.

. . . The [f]irst [a]mendment affords protection to symbolic or expressive conduct as well as to actual speech.

. . . The protections afforded by the [f]irst [a]mendment, however, are not absolute, and we have long

recognized that the government may regulate certain

categories of expression consistent with the [c]onstitution.’’ (Internal quotation marks omitted.) Lafferty v.

Jones, 336 Conn. 332, 351–52, 246 A.3d 429 (2020), cert.

denied, U.S. , 141 S. Ct. 2467, 209 L. Ed. 2d

529 (2021).

Whether the commission violated the first amendment by enforcing the program regulations to preclude

the plaintiffs from mentioning Governor Malloy by

name in their campaign communications is a question

of law subject to plenary review via an ‘‘independent

examination’’ of the record. (Internal quotation marks

omitted.) Id., 352; see Meriden v. Freedom of Informa-
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tion Commission, 338 Conn. 310, 318–19, 258 A.3d 1

(2021) (plenary appellate review under Uniform Administrative Procedure Act, General Statutes § 4-166 et

seq.).

I

FIRST AMENDMENT PRINCIPLES GOVERNING

RESTRICTIONS ON PUBLIC

CAMPAIGN FUNDS

The claims in this appeal present issues at the intersection of two different areas of first amendment law.

First, they require us to consider the various United

States Supreme Court decisions addressing the constitutionality of various campaign finance reform laws

under the first amendment, beginning with its landmark

decision in Buckley v. Valeo, supra, 424 U.S. 1. Next,

because public campaign financing by definition involves

governmental grants to private individuals seeking to

engage in what is axiomatically a protected activity

under the first amendment, we must consider whether

restrictions imposed in connection with those grants

pass muster under the unconstitutional conditions doctrine, which holds that ‘‘the [g]overnment may not deny

a benefit to a person on a basis that infringes his constitutionally protected . . . freedom of speech even if he

has no entitlement to that benefit. . . . In some cases,

a funding condition can result in an unconstitutional

burden on [f]irst [a]mendment rights.’’ (Citation omitted; internal quotation marks omitted.) Agency for

International Development v. Alliance for Open Society International, Inc., 570 U.S. 205, 214, 133 S. Ct.

2321, 186 L. Ed. 2d 398 (2013) (Alliance for Open Society

International).

The threads of case law that emanate from these

doctrines ultimately distill to a few general principles

that dictate our conclusion in this appeal. First, although

laws that burden political speech, including expendi-
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ture limitations, ordinarily are subject to strict scrutiny;

see, e.g., Arizona Free Enterprise Club’s Freedom Club

PAC v. Bennett, 564 U.S. 721, 734, 131 S. Ct. 2806, 180

L. Ed. 2d 664 (2011); candidates who voluntarily accept

public campaign financing also accept reasonable terms

and conditions attendant to such programs that otherwise may abridge their free speech rights. See, e.g.,

Corren v. Condos, supra, 898 F.3d 221–22; Republican

National Committee v. Federal Election Commission,

supra, 487 F. Supp. 284–85. Nevertheless, to the extent

that such terms and conditions do not serve the compelling state interest of protecting the governmental fisc

and the integrity of the public financing program, they

are an unconstitutional condition on inherently private

speech that does not survive strict scrutiny. See, e.g.,

Legal Services Corp. v. Velazquez, 531 U.S. 533, 543–44,

121 S. Ct. 1043, 149 L. Ed. 2d 63 (2001). In this case,

prohibiting publicly funded candidates from engaging

in campaign speech concerning outside races survives

strict scrutiny if it is narrowly tailored to protect the

public fisc by enforcing the limitations of the program.

A preclusion on campaign speech that refers to a candidate in another race is narrowly tailored to achieve that

compelling state interest only when the speech at issue

is unquestionably the functional equivalent of campaign

speech in the outside race, rather than a rhetorical

device intended to communicate where the speaker

stands on the issues. See, e.g., Federal Election Commission v. Wisconsin Right to Life, Inc., supra, 551

U.S. 469–70 (opinion announcing judgment). In part II

of this opinion, we conclude that none of the communications at issue in this appeal could reasonably be construed as anything more than a rhetorical device intended

to communicate the merits of the plaintiffs’ candidacies

as bulwarks against the policies endorsed by Governor

Malloy and the Democratic Party.
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A

Buckley and Its Progeny

We begin with a discussion of the first amendment

principles governing campaign finance reform laws

since the United States Supreme Court decided Buckley

v. Valeo, supra, 424 U.S. 1, nearly fifty years ago. It is

well established that ‘‘[d]iscussion of public issues and

debate on the qualifications of candidates are integral

to the operation of our system of government. . . . As

a result, the [f]irst [a]mendment has its fullest and most

urgent application to speech uttered during a campaign

for political office. . . . Laws that burden political

speech are accordingly subject to strict scrutiny, which

requires the [g]overnment to prove that the restriction

furthers a compelling interest and is narrowly tailored

to achieve that interest.’’ (Citations omitted; internal

quotation marks omitted.) Arizona Free Enterprise

Club’s Freedom Club PAC v. Bennett, supra, 564 U.S.

734; see Citizens United v. Federal Election Commission, supra, 558 U.S. 340; Buckley v. Valeo, supra, 14–15;

see also Seymour v. Elections Enforcement Commission, 255 Conn. 78, 83–85, 762 A.2d 880 (2000) (setting

forth background principles governing first amendment

protections for political speech), cert. denied, 533 U.S.

951, 121 S. Ct. 2594, 150 L. Ed. 2d 752 (2001).

The United States Supreme Court has applied these

principles to invalidate government imposed ‘‘restrictions on campaign expenditures, [Buckley v. Valeo,

supra, 424 U.S. 52–54], restraints on independent expenditures applied to express advocacy groups, [Federal

Election Commission v. Massachusetts Citizens for

Life, Inc., 479 U.S. 238, 256–65, 107 S. Ct. 616, 93 L. Ed.

2d 539 (1986) (opinion announcing judgment)], limits on

uncoordinated political party expenditures, [Colorado

Republican Federal Campaign Committee v. Federal

Election Commission, 518 U.S. 604, 608, 116 S. Ct. 2309,
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135 L. Ed. 2d 795 (1996) (opinion announcing judgment)], and regulations barring unions, nonprofit and

other associations, and corporations from making independent expenditures for electioneering communication, [Citizens United v. Federal Election Commission,

supra, 558 U.S. 372].’’ Arizona Free Enterprise Club’s

Freedom Club PAC v. Bennett, supra, 564 U.S. 734–35;

see id., 753 (invalidating matching funds provision under

state public financing scheme on ground that its award

of additional funds to publicly funded candidates had

effect of penalizing political speech by candidates and

independent expenditures, which was undue burden not

justified by state interests in preventing corruption or

encouraging participation in public financing program);

Davis v. Federal Election Commission, 554 U.S. 724,

729–30, 739–40, 128 S. Ct. 2759, 171 L. Ed. 2d 737 (2008)

(invalidating ‘‘the so-called ‘Millionaire’s Amendment’ ’’

to Bipartisan Campaign Reform Act of 2002 (BCRA), 2

U.S.C. § 441a-1 (a), which tripled contribution limits of

congressional candidates whose opponents spent more

than $350,000 in personal funds, because it was ‘‘an

unprecedented penalty’’ that was not supported by compelling state interest and that required candidates ‘‘to

choose between the [f]irst [a]mendment right to engage

in unfettered political speech and subjection to discriminatory fundraising limitations’’).

‘‘At the same time,’’ the United States Supreme Court

has ‘‘subjected strictures on [campaign related] speech

that [it has] found less onerous to a lower level of

scrutiny and upheld those restrictions. For example,

after finding that the restriction at issue was closely

drawn to serve a sufficiently important interest, see,

e.g., [McConnell v. Federal Election Commission, 540

U.S. 93, 136, 124 S. Ct. 619, 157 L. Ed. 2d 491 (2003),

overruled in part on other grounds by Citizens United

v. Federal Election Commission, 558 U.S. 310, 130 S.

Ct. 876, 175 L. Ed. 2d 753 (2010)], [Nixon v. Shrink
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Missouri Government PAC, 528 U.S. 377, 387–88, 120

S. Ct. 897, 145 L. Ed. 2d 886 (2000)], [the court has]

upheld [government imposed] limits on contributions

to candidates, [Buckley v. Valeo, supra, 424 U.S. 23–35],

caps on coordinated party expenditures, [Federal Election Commission v. Colorado Republican Federal

Campaign Committee, 533 U.S. 431, 437, 121 S. Ct.

2351, 150 L. Ed. 2d 461 (2001)], and requirements that

political funding sources disclose their identities, [Citizens United v. Federal Election Commission, supra,

558 U.S. 371].’’ (Internal quotation marks omitted.) Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, supra, 564 U.S. 735.

The case law is less clear with respect to the nature

of the first amendment scrutiny applicable to limitations

imposed on candidates in connection with public

financing. The starting point again is the United States

Supreme Court’s landmark decision in Buckley, in

which the court rejected a first amendment challenge

to the federal public financing of political campaigns;

the court considered public funding ‘‘a congressional

effort, not to abridge, restrict, or censor speech, but rather

to use public money to facilitate and enlarge public

discussion and participation in the electoral process, goals

vital to a self-governing people. Thus, [public financing]

furthers, not abridges, pertinent [f]irst [a]mendment values.’’ (Footnote omitted.) Buckley v. Valeo, supra, 424

U.S. 92–93. Addressing expenditure limitations imposed

on publicly funded candidates, the court stated in dictum in footnote 65 of the opinion that ‘‘Congress may

engage in public financing of election campaigns and

may condition acceptance of public funds on an agreement by the candidate to abide by specified expenditure

limitations. Just as a candidate may voluntarily limit

the size of the contributions he chooses to accept, he

may decide to forgo private fundraising and accept public funding.’’ Id., 57 n.65.
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The leading case applying the dictum in Buckley’s

footnote 65 in considering the constitutionality of candidate spending limitations under the federal public

financing scheme is the panel decision of the United

States District Court for the Southern District of New

York, later affirmed without opinion by the United

States Supreme Court, in Republican National Committee v. Federal Election Commission, supra, 487 F.

Supp. 280. In Republican National Committee, the

court upheld the aggregate limitations on federal and

presidential candidate expenditures under the federal

public funding schemes of the Presidential Election

Campaign Fund Act, 26 U.S.C. § 9001 et seq., and the

Federal Election Campaign Act of 1971 (FECA), 2 U.S.C.

§ 431 et seq. See Republican National Committee v.

Federal Election Commission, supra, 282. The court

observed ‘‘that a presidential candidate is not compelled

to accept public financing under the statutes or to

accept the limitations imposed,’’ leaving the court with

‘‘the issue of whether Congress may lawfully condition

a presidential candidate’s eligibility for public federal

campaign funds [on] the candidate’s voluntary acceptance of limitations on campaign expenditures and private contributions.’’ Id., 284. The court recognized that,

under cases such as Perry v. Sindermann, 408 U.S.

593, 92 S. Ct. 2694, 33 L. Ed. 2d 570 (1972), ‘‘Congress

may not condition [a] benefit on the sacrifice of protected rights . . . .’’ (Citations omitted.) Republican

National Committee v. Federal Election Commission,

supra, 284. Nevertheless, the court concluded that the

aggregate expenditure limitations at issue did not violate this principle because, ‘‘as long as the candidate

remains free to engage in unlimited private funding and

spending instead of limited public funding, the law does

not violate the [f]irst [a]mendment rights of the candidate or supporters.’’ Id.; see id., 285 (because ‘‘the candidate remains free to choose between funding
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alternatives, he or she will opt for public funding only if,

in the candidate’s view, it will enhance the candidate’s

powers of communication and association’’ (emphasis

in original)). The court further determined that, even

if ‘‘the conditions imposed by Congress’’ were viewed

as a burden on the first amendment rights of publicly

financed candidates, that burden ‘‘is fully justified by

. . . compelling state interests,’’ namely, the ‘‘goals of

Congress . . . to reduce the deleterious influence of

large contributions on our political process, to facilitate

communication by candidates with the electorate, and

to free candidates from the rigors of fundraising . . . .’’

(Citations omitted; internal quotation marks omitted.)

Id., 285; see id., 285–86 (emphasizing need for ‘‘reasonable limits and conditions’’ in preventing ‘‘[the defeat

of] the purpose of public financing’’ and noting that

‘‘the conditions placed on the expenditure of public funds

are necessary to the effectiveness of a program [that]

furthers significant state interests’’).

Subsequent federal decisions considering first amendment challenges to various expenditure limitations

imposed in connection with federal public financing

programs are consistent with Republican National

Committee’s treatment of the voluntary nature of such

programs as dispositive. For example, in John Glenn

Presidential Committee, Inc. v. Federal Election Commission, 822 F.2d 1097, 1098 (D.C. Cir. 1987), a presidential campaign committee challenged the Federal

Election Commission’s application of a statutory recoupment remedy to recover money spent in violation of

state-by-state restrictions. The District of Columbia Circuit Court of Appeals cited Regan v. Taxation with

Representation of Washington, supra, 461 U.S. 545, for

the proposition that ‘‘ ‘the government may not deny a

benefit to a person because he exercises a constitutional right’ ’’ but concluded that the ‘‘statutory recoupment remedy pursued by the [Federal Election
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Commission] does not call back private spending; it

. . . police[s] the restrictions Congress placed on the

expenditure of public [money]. Campaign speech within

a state is surely activity sheltered by the [c]onstitution.

A ceiling on public subsidies for that activity, however,

cannot be equated . . . with a proscription of or a penalty on the activity.’’ John Glenn Presidential Committee, Inc. v. Federal Election Commission, supra, 1098;

see Bush-Quayle ‘92 Primary Committee, Inc. v. Federal Election Commission, 104 F.3d 448, 452 (D.C. Cir.

1997) (rejecting argument that ‘‘too restrictive an interpretation of the [presidential public funding] statute

would prevent a candidate from engaging in certain

political speech’’ because it ‘‘would mean only that the

candidate could not depend on public funds to subsidize

that speech’’); John Glenn Presidential Committee,

Inc. v. Federal Election Commission, supra, 1099–1100

(rejecting attack on program’s ‘‘state-by-state limitations’’ because that restriction ‘‘applies only to federal

funds, not to private [money], spent for unqualified

purposes,’’ and ‘‘a legislature’s decision not to subsidize

the exercise of a fundamental right—a fortiori, a decision to place dollar limits on public subsidies—does not

infringe that right’’); cf. Federal Election Commission

v. Massachusetts Citizens for Life, Inc., supra, 479 U.S.

256 n.9 (opinion announcing judgment) (rejecting argument that Regan supports ‘‘[the] contention that the

requirement that independent spending be conducted

through a separate segregated fund does not burden

[the organization’s] [f]irst [a]mendment rights’’ because

independent spending is ‘‘core political speech under

the [f]irst [a]mendment,’’ and no government subsidy

was at issue).

With respect to state public campaign finance schemes,

the relatively recent decision of the United States Court

of Appeals for the Second Circuit in Corren v. Condos,

supra, 898 F.3d 209, considered the constitutionality of
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various conditions and limitations imposed in connection with Vermont’s public financing program. See id.,

212–13. In Corren, the court followed Republican

National Committee and Buckley and held that Vermont’s individual contribution limit did not violate the

first amendment rights of publicly financed candidates

by burdening their ‘‘ability to speak and associate, particularly with political parties . . . .’’ Id., 220. Emphasizing the Vermont candidates’ opportunity to choose

whether public or private campaign funding would be

most advantageous in supporting the exercise of their

first amendment rights, the Second Circuit concluded

that the unconstitutional conditions doctrine11 did not

entail ‘‘a heightened level of scrutiny because the terms

of the [o]ption condition a benefit—[in Vermont], a

grant of public financing—on a [publicly financed candidate’s] ostensible sacrifice of a constitutional right—

namely the ability to raise unlimited private contributions.’’12 Id., 220–21. Thus, the Second Circuit concluded

that ‘‘the voluntary decision to accept public funds and

[to] forgo the ability to accept private contributions

does not burden [publicly financed candidates’] [f]irst

[a]mendment rights,’’ rendering it unnecessary to determine whether an important state interest justified any

burden. Id., 222; see North Carolina Right to Life Committee Fund for Independent Political Expenditures

v. Leake, 524 F.3d 427, 436–37 (4th Cir.), cert. denied

sub nom. Duke v. Leake, 555 U.S. 994, 129 S. Ct. 490,

172 L. Ed. 2d 357 (2008); Daggett v. Commission on

11 See part I B of this opinion.

12 The Second Circuit reads Republican National Committee v. Federal

Election Commission, supra, 487 F. Supp. 284–85, to ‘‘clearly [set] out a

disjunctive test, under which a statute is constitutionally sound if it either

does not diminish rights or is justified by a sufficient interest. . . . [A]

candidate’s ability to choose either to receive public funds or [to] raise

unlimited private funds does not diminish her ability to speak. Therefore,

under [Republican National Committee], that condition need not be justified

by a sufficient interest for the law to be constitutionally sound.’’ (Emphasis

in original.) Corren v. Condos, supra, 898 F.3d 221.
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Government Ethics & Election Practices, 205 F.3d 445,

467 (1st Cir. 2000); Gable v. Patton, 142 F.3d 940, 948

(6th Cir. 1998), cert. denied, 525 U.S. 1177, 119 S. Ct.

1112, 143 L. Ed. 2d 108 (1999), and cert. denied, 525

U.S. 1177, 119 S. Ct. 1112, 143 L. Ed. 2d 108 (1999);

Rosenstiel v. Rodriguez, 101 F.3d 1544, 1552 (8th Cir.

1996), cert. denied, 520 U.S. 1229, 117 S. Ct. 1820, 137

L. Ed. 2d 1028 (1997).

Expanding on this analysis, the Second Circuit

declined to apply heightened scrutiny to various challenges to certain other restrictions imposed by Vermont’s public financing scheme, reasoning that they do

not implicate publicly funded candidates’ fundamental

rights given the voluntary nature of the program. See

Corren v. Condos, supra, 898 F.3d 227–30. Specifically,

the court upheld contribution limits applicable to political parties to avoid the circumvention of the limits

imposed on individuals as ‘‘necessary to maintain a

public financing system,’’ observing that any adverse

effect on the constitutional rights of political parties ‘‘is

closely drawn to the important governmental interests

served by a public financing system.’’ Id., 226. Similarly,

the court rejected a challenge to the preclusion of publicly financed candidates’ use of personal funds for campaign expenditures. See id., 227–28. Finally, the Second

Circuit upheld timing restrictions that disqualify candidates from public financing if they announce their bid

for office or accept significant contributions before the

end of a qualification period. See id., 228–30.

We agree with the plaintiffs, however, that the pure

voluntariness analysis embodied by Buckley, Republican National Committee, and Corren is not dispositive

of this appeal. Indeed, in Corren, the Second Circuit

appeared to acknowledge the limitations of its analysis.

In a footnote, the court limited its holding to expenditure limitations and described as ‘‘troubling’’ certain

hypothetical restrictions on the speech and conduct of
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publicly funded candidates, including one precluding

them from campaigning against certain other candidates.13 Corren v. Condos, supra, 898 F.3d 222 n.6.

Because the program restriction at issue in this appeal is

not a generalized expenditure limit but, rather, directly

governs the content of publicly financed candidates’

messaging in the course of engaging in the first amendment conduct facilitated by the program, a more searching analysis is required. This analysis is complicated by

the fact that neither the parties’ briefs nor our independent research has revealed any case law considering

whether expenditure restrictions that govern the specific content of a publicly financed candidate’s campaign messaging pass muster under the first

amendment.

B

Unconstitutional Conditions Doctrine and

Public Financing Restrictions

As a starting point, we observe that the overriding

focus on voluntariness as a dispositive factor in this

13 Specifically, in Corren, the Second Circuit considered a reductio ad

absurdum argument that the voluntariness aspect of its holding would operate to save a condition that publicly financed candidates ‘‘refrain from

discussing certain issues or associating with certain groups, possess certain religious affiliations, or not campaign against certain candidates.’’

(Emphasis added.) Corren v. Condos, supra, 898 F.3d 222 n.6. Although the

Second Circuit declined to ‘‘address whether any of those specific conditions

would be permissible because they [were] not before [the court] in [that]

case,’’ the court stated that, ‘‘were an offer of [public] funding so advantageous that a candidate did feel compelled to accept the funding despite

objecting to a condition attached thereto, [the court] would review whether

the condition burdened the candidate’s rights and, if it did, review whether

imposing that condition nonetheless satisfied the appropriate level of scrutiny.’’ Id. Significantly, the court found it ‘‘hard to imagine that any of [those]

conditions . . . would further a legitimate governmental interest such that

it could pass the applicable level of scrutiny’’ and emphasized that the

candidates in Corren had ‘‘not shown that [its] analysis would permit any

of the troublesome conditions that they identif[ied] to hinder candidates’

exercise of their rights.’’ Id.
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line of cases is analytically inconsistent with the United

States Supreme Court’s post-Buckley case law considering whether conditions imposed in connection with the

acceptance of government funding in a variety of other

contexts violate the first amendment. As one prominent

scholarly commentator, Professor Richard Briffault of

Columbia Law School, has observed, Buckley’s footnote

65 ‘‘provides support for an argument that the voluntariness of the public funding program would be sufficient

to justify a speech constraint on publicly funded candidates. However, the unconstitutional conditions doctrine suggests that some conditions that burden the

liberties of grant recipients are unconstitutional even

though the grantee is free to turn down the grant and

the conditions.’’ R. Briffault, ‘‘Public Funds and the Regulation of Judicial Campaigns,’’ 35 Ind. L. Rev. 819, 843

(2002). Indeed, Joel M. Gora, a scholar who was counsel

for the plaintiff in Buckley, has criticized footnote 65

as fundamentally flawed for failing to discuss ‘‘why a

‘voluntary’ agreement to surrender [f]irst [a]mendment

rights was permissible’’ because, ‘‘had there been such

a discussion, it would have had to engage the [United

States Supreme] Court’s ‘unconstitutional conditions’

doctrine.’’ J. Gora, ‘‘Don’t Feed the Alligators: Government Funding of Political Speech and the Unyielding

Vigilance of the First Amendment,’’ 2010–2011 Cato Sup.

Ct. Rev. 81, 126 (2011); see R. Briffault, supra, 827

(‘‘Buckley’s only statement concerning the spending

limit indicates that voluntariness is critical, but that

statement occurs in a footnote, involved minimal analysis, and is arguably dictum’’); J. Gora, supra, 126 (‘‘[T]he

broader issue is whether you can ever ‘voluntarily’ be

made to surrender a constitutional right to obtain a

government benefit. Put in the Buckley context, if you

have a [f]irst [a]mendment right to spend as much as

you can raise on your campaign, how can the government make you surrender that right in order to get
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government funding for your campaign? In this context,

can the government purchase what it cannot command?’’); see also J. Gora, supra, 121–24 (questioning

whether rationale for upholding public finance scheme

in Buckley is consistent with subsequent decision in

Arizona Free Enterprise Club’s Freedom Club PAC,

which struck down award matching funds to publicly

funded candidates as ‘‘triggered’’ by expenditures of

privately financed opponents).

1

Background Principles

We turn, then, to a review of the unconstitutional

conditions doctrine, which has been described as

embodying ‘‘a characteristic technique by which [the]

government appears not to, but in fact does burden

. . . liberties’’; K. Sullivan, ‘‘Unconstitutional Conditions,’’ 102 Harv. L. Rev. 1413, 1419 (1989); and as providing ‘‘a shorthand response to the view[s] that those

who voluntarily participate in government programs

have ‘waived’ their constitutional objections . . . and

. . . that the government’s power not to create a regulatory program necessarily includes the power to impose

on that program whatever conditions it chooses.’’ C.

Sunstein, ‘‘Why the Unconstitutional Conditions Doctrine Is an Anachronism (with Particular Reference to

Religion, Speech, and Abortion),’’ 70 B.U. L. Rev. 593,

593–94 (1990); see L. Mayer, ‘‘Nonprofits, Speech, and

Unconstitutional Conditions,’’ 46 Conn. L. Rev. 1045,

1049 (2014) (‘‘[g]iven the pervasiveness of government

benefits and therefore the risk to constitutionally guaranteed freedoms if there is not a robust unconstitutional

conditions doctrine, it is critical that a way be found

to salvage the doctrine whenever possible’’); see also

State v. Angel M., 337 Conn. 655, 683–84, 255 A.3d 801

(2020) (Ecker, J., concurring) (discussing potential

application of unconstitutional conditions doctrine at
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sentencing in connection with defendant’s failure to

apologize to victims, as juxtaposed to his right to maintain his innocence).

We begin the ‘‘notoriously tricky’’14 unconstitutional

conditions analysis with Alliance for Open Society

International, which is the United States Supreme

Court’s most recent, leading decision considering whether

conditions imposed in connection with a government

subsidy program violate the first amendment rights of

the recipient. In Alliance for Open Society International, the court observed—consistent with the reasoning of public financing decisions such as Corren v.

Condos, supra, 898 F.3d 209, and Republican National

Committee v. Federal Election Commission, supra, 487

F. Supp. 280—that, as ‘‘a general matter, if a party

objects to a condition on the receipt of federal funding,

its recourse is to decline the funds. This remains true

when the objection is that a condition may affect the

recipient’s exercise of its [f]irst [a]mendment rights.’’

Agency for International Development v. Alliance for

Open Society International, Inc., supra, 570 U.S. 214.

Nevertheless, ‘‘the [g]overnment may not deny a benefit

to a person on a basis that infringes his constitutionally

protected . . . freedom of speech even if he has no

14 Both the United States Supreme Court and numerous commentators

have recognized that unconstitutional conditions cases arising in the funding

context present ‘‘a notoriously tricky question of constitutional law.’’ Matal

v. Tam, 582 U.S. 218, 239, 137 S. Ct. 1744, 198 L. Ed. 2d 366 (2017) (opinion

announcing judgment); see, e.g., R. Briffault, supra, 35 Ind. L. Rev. 821 (‘‘[the

unconstitutional conditions] doctrine is a murky one . . . and provides no

clear answer to the question of whether a campaign speech code [for publicly

funded judicial candidates] could be an unconstitutional condition’’); R.

Kozel, ‘‘Leverage,’’ 62 B.C. L. Rev. 109, 124 (2021) (‘‘[t]he doctrine of unconstitutional conditions, charged with safeguarding liberty in the face of government’s ubiquitous programming and extraordinary resources, is famously

murky’’); L. Mayer, supra, 46 Conn. L. Rev. 1047 (‘‘[i]f there is any consensus

with respect to the doctrine of unconstitutional conditions, it is that the

doctrine is a mess both generally and in the specific constitutional contexts

in which the courts have applied it’’).
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entitlement to that benefit. . . . In some cases, a funding condition can result in an unconstitutional burden

on [f]irst [a]mendment rights.’’ (Citation omitted; internal quotation marks omitted.) Id. In the spending context, ‘‘the relevant distinction . . . is between

conditions that define the limits of the government

spending program—those that specify the activities

Congress wants to subsidize—and conditions that seek

to leverage funding to regulate speech outside the contours of the program itself. The line is hardly clear, in

part because the definition of a particular program can

always be manipulated to subsume the challenged condition. [The United States Supreme Court has] held,

however, that ‘Congress cannot recast a condition on

funding as a mere definition of its program in every

case, lest the [f]irst [a]mendment be reduced to a simple

semantic exercise.’ ’’ (Emphasis added.) Id., 214–15,

quoting Legal Services Corp. v. Velazquez, supra, 531

U.S. 547; see J. Blocher, ‘‘New Problems for Subsidized

Speech,’’ 56 Wm. & Mary L. Rev. 1083, 1114 (2015) (By

‘‘upholding an unconstitutional [conditions style] claim

in a case like [Alliance for Open Society International],

the [United States Supreme] Court suggests that the

recipient of what might seem to be government largesse

actually has some kind of constitutional entitlement to

those funds. Were it otherwise, the case could be

decided on the basis of [Chief Justice Roberts’] observation that ‘[a]s a general matter, if a party objects to a

condition on the receipt of federal funding, its recourse

is to decline the funds.’ ’’).

The United States Supreme Court observed that this

distinction between conditions that define the scope of

a program and conditions that regulate speech outside

the contours of that program was ‘‘illustrate[d]’’ by its

decisions in Rust v. Sullivan, supra, 500 U.S. 173, Regan

v. Taxation with Representation of Washington, supra,

461 U.S. 540, and Federal Communications Commis-
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sion v. League of Women Voters of California, 468 U.S.

364, 104 S. Ct. 3106, 82 L. Ed. 2d 278 (1984) (League of

Women Voters). Agency for International Development

v. Alliance for Open Society International, Inc., supra,

570 U.S. 215; see id., 215–18. In League of Women Voters,

the United States Supreme Court struck down a grant’s

complete prohibition on television and radio stations

‘‘editorializing,’’ including with the use of separate private funds, because it went beyond precluding the use

of federal funds to subsidize editorializing and, instead,

affected stations’ speech on matters of public importance beyond the scope of the federal program. Federal

Communications Commission v. League of Women

Voters of California, supra, 399–401; see Agency for

International Development v. Alliance for Open Society International, Inc., supra, 215–16. In contrast, in

Rust, the court upheld a condition of grants under Title

X of the Public Health Service Act barring recipients

from advocating for abortion as a family planning

method because grantees could still engage in abortion

advocacy using physically and financially separate programs that did not receive Title X funds, meaning that

Congress could define the federal program to encourage

only particular family planning methods. Rust v. Sullivan, supra, 193–98; see Agency for International Development v. Alliance for Open Society International,

Inc., supra, 216–17. Similarly, in Regan v. Taxation with

Representation of Washington, supra, 544–45 and n.6,

the court held that Congress could limit tax-exempt

status under 26 U.S.C. § 501 (c) (3) ‘‘to organizations

that did not attempt to influence legislation’’ because

‘‘tax-exempt status . . . ‘ha[d] much the same effect

as a cash grant to the organization,’ ’’ and the prohibition

did not forbid organizations from lobbying altogether

because they could incorporate separately for that purpose under 26 U.S.C. § 501 (c) (4). Agency for International Development v. Alliance for Open Society
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International, Inc., supra, 215. Following this distinction, the United States Supreme Court held in Alliance

for Open Society International that the congressional

requirement that recipients of Leadership Act funds for

HIV/AIDS prevention adopt formal policies opposing

prostitution was unconstitutional because it had effects

beyond the federal program by functioning as an ‘‘ongoing condition on recipients’ speech and activities, [and]

a ground for terminating a grant after selection is complete.’’ Id., 217–18; see id., 208. Thus, the case was ‘‘not

about the [g]overnment’s ability to enlist the assistance

of those with whom it already agrees. It [was] about

compelling a grant recipient to adopt a particular belief

as a condition of funding.’’ Id., 218; see id., 211, 219

(The court rejected the government’s reliance on an

affiliation program that permitted funding recipients to

work with affiliated organizations that do not abide by

the Leadership Act requirements because that program

did not alleviate first amendment concerns ‘‘when the

condition is that a funding recipient espouse a specific

belief as its own. If the affiliate is distinct from the

recipient, the arrangement does not afford a means for

the recipient to express its beliefs.’’ (Emphasis in

original.)).

Accordingly, we accept as a very general proposition

that the unconstitutional conditions doctrine may permit the government to make otherwise problematic

‘‘[content based] distinctions when it subsidizes speech.’’

Davenport v. Washington Education Assn., 551 U.S.

177, 188–89, 127 S. Ct. 2372, 168 L. Ed. 2d 71 (2007);

cf. Reed v. Gilbert, 576 U.S. 155, 169–71, 135 S. Ct. 2218,

192 L. Ed. 2d 236 (2015) (content based regulations on

speech are subject to strict scrutiny). Nevertheless, the

United States Supreme Court’s focus in Alliance for

Open Society International on the effects of the condition both inside and outside of the governmental program is consistent with Professor Sunstein’s oft cited
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rejection of an unconstitutional conditions model in

which the concepts of ‘‘ ‘coercion’ or ‘penalty’ ’’ are

dispositive, in favor of ‘‘a highly particular, [constitutionally centered]model of reasons,’’ which ‘‘asks whether,

under the provision at issue, the government has constitutionally sufficient justifications for affecting constitutionally protected interests.’’ C. Sunstein, supra, 70 B.U.

L. Rev. 595; see id., 620–21 (urging ‘‘a more direct and

[constitutionally grounded] inquiry into, first, the nature

of the incursion on the relevant right, and second, the

legitimacy and strength of the government’s justifications for any such incursion’’); see also R. Post, Essay,

‘‘Subsidized Speech,’’ 106 Yale L.J. 151, 195 (1996) (evaluating constitutionality of conditions by ‘‘characteriz[-

ing] . . . speech . . . to determine the domain to

which the subsidized speech at issue in a particular

case should be assigned,’’ with ‘‘regulations’’ on ‘‘public

discourse’’ to be ‘‘subject . . . to the full array of constitutional constraints required by the domain in which

the subsidized speech is located,’’ and ‘‘internal directives to state officials dispensing subsidies’’ subject to

less scrutiny).

A focus on the interests affected reveals that the

government’s ability to attach content based conditions

on speech has particularly significant limitations with

respect to distinctly private speech that is funded by

the government, such as campaign messaging by candidates.15 Like Professor Briffault, we find most illustra15 It is well established that the free speech clause of the first amendment

applies only to ‘‘government regulation of private speech; it does not regulate

government speech.’’ Pleasant Grove City v. Summum, 555 U.S. 460, 467,

129 S. Ct. 1125, 172 L. Ed. 2d 853 (2009). Although the line may be fine at

times, particularly with regard to incumbents, it is similarly well established

that speech by political candidates seeking office is inherently private in

nature for purposes of the first amendment. See, e.g., Campbell v. Reisch,

986 F.3d 822, 825–27 (8th Cir. 2021) (discussing distinction, for purposes of

constitutionality of blocking comments on social media page, between page

maintained by candidate seeking office and page maintained by public official); see also Garnier v. O’Connor-Ratcliff, 41 F.4th 1158, 1174–77 (9th

Cir. 2022) (citing cases from other federal courts of appeals as to state
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tive of this limitation the United States Supreme Court’s

decision in Legal Services Corp., which considered a

first amendment challenge to a restriction under the

Legal Services Act that prevented attorneys for indigent

clients, funded by the Legal Services Corporation (LSC),

from ‘‘accept[ing] representations designed to change

welfare laws, much less argu[ing] against the constitutionality or statutory validity of those laws.’’ Legal Services Corp. v. Velazquez, supra, 531 U.S. 538–39; see,

e.g., R. Briffault, supra, 35 Ind. L. Rev. 829–33. Concluding that Rust v. Sullivan, supra, 500 U.S. 173, provided

no support for that restriction, the court observed that

‘‘the LSC program was designed to facilitate private

speech, not to promote a governmental message. Congress funded LSC grantees to provide attorneys to represent the interests of indigent clients. In the specific

context of . . . suits for benefits, an LSC-funded attorney speaks on the behalf of the client in a claim against

the government for welfare benefits. The lawyer is not

the government’s speaker.’’ Legal Services Corp. v. Velazquez, supra, 542. The court held that this condition

on the LSC grant constituted viewpoint discrimination

that violated the first amendment. See id., 547.

In its analysis, the United States Supreme Court

acknowledged that, ‘‘[w]hen the government creates a

limited forum for speech, certain restrictions may be

necessary to define the limits and purposes of the program. . . . The same is true when the government

establishes a subsidy for specified ends.’’ (Citations

omitted.) Id., 543. Observing that the subsidies to LSC

are intended ‘‘to facilitate suits for benefits by using

the state and federal courts and the independent bar

on which those courts depend,’’ the court stated that

‘‘the program presumes that private, nongovernmental

speech is necessary, and a substantial restriction is

action with respect to public officials’ social media pages), vacated, 601

U.S. 205, 144 S. Ct. 717, L. Ed. 2d (2024).
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placed [on] that speech.’’ Id., 544. The court noted that

‘‘[r]estricting LSC attorneys in advising their clients and

in presenting arguments and analyses to the courts distorts the legal system by altering the traditional role of

the attorneys . . . .’’16 Id.; see id., 545–46 (noting separation of powers concerns created by restriction). In

concluding that this restriction violated the first amendment, the court rejected the government’s claim that

the restriction was ‘‘necessary to define the scope and

contours of the federal program’’ by ‘‘ensur[ing] [that]

funds can be spent for those cases most immediate

to congressional concern,’’ namely, ‘‘simple suits for

benefits,’’ not ‘‘complex challenges to existing welfare

laws.’’ Id., 547. As the court emphasized more than one

decade later in Alliance for Open Society International,

16 Although the United States Supreme Court decided Legal Services Corp.

as a viewpoint discrimination case given the specific nature of the restriction

imposed on the legal aid attorneys, we find instructive its analysis of the

editorialization restrictions at issue in Federal Communications Commission v. League of Women Voters of California, supra, 468 U.S. 364. The

court observed that the ‘‘private nature of the speech involved [in Legal

Services Corp.], and the extent of LSC’s regulation of private expression,

[were] indicated further by the circumstance that the [g]overnment [sought]

to use an existing medium of expression and to control it, in a class of

cases, in ways [that] distort its usual functioning. [When] the government

uses or attempts to regulate a particular medium, [the court has] been

informed by its accepted usage in determining whether a particular restriction on speech is necessary for the program’s purposes and limitations.’’

Legal Services Corp. v. Velazquez, supra, 531 U.S. 543; see United States

v. American Library Assn., Inc., 539 U.S. 194, 201–202, 213, 123 S. Ct. 2297,

156 L. Ed. 2d 221 (2003) (plurality opinion) (distinguishing Legal Services

Corp., in concluding that federal statute requiring installation of filtering

software on public library computers as condition of receiving federal funds

did not violate first amendment because public libraries do not have ‘‘[a]

role that pits them against the [g]overnment, and there is no comparable

assumption that they must be free of any conditions that their benefactors

might attach to the use of donated funds or other assistance’’); R. Briffault,

supra, 35 Ind. L. Rev. 843 (‘‘[a] restrictive speech constraint raises the specter

of an unconstitutional governmental effort to transform a ‘medium of expression’ by driving discussion of political and legal issues out of an electoral

process in which political and legal issues may be central to voter [decision making]’’).
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it had held in Legal Services Corp. that ‘‘Congress cannot recast a condition on funding as a mere definition

of its program in every case, lest the [f]irst [a]mendment be reduced to a simple semantic exercise. Here,

notwithstanding Congress’ purpose to confine and limit

its program, the restriction operates to insulate current

welfare laws from constitutional scrutiny and certain

other legal challenges, a condition implicating central

[f]irst [a]mendment concerns.’’ (Emphasis added.)

Legal Services Corp. v. Velazquez, supra, 531 U.S. 547;

see Agency for International Development v. Alliance

for Open Society International, Inc., supra, 570 U.S.

215.

2

Application of Unconstitutional Conditions

Principles to Public Financing

In our view, precluding the use of public funds to

mention another candidate in a different race as a rhetorical device is akin to the restriction on welfare challenges at issue in Legal Services Corp., insofar as both

involve content based restrictions on government funded

private speech that operate to limit the communication

strategies of those who take advantage of the forum

provided by those funds.17 See R. Briffault, supra, 35

Ind. L. Rev. 822 (speech and civility code applicable

17 We recognize that there is authority strictly limiting the import of Legal

Services Corp. to viewpoint discrimination. See Legal Aid Services of Oregon

v. Legal Services Corp., 608 F.3d 1084, 1095 (9th Cir. 2010) (upholding

restriction precluding use of legal services funds for soliciting clients, participating in class actions, and lobbying because that restriction ‘‘did not discriminate against any particular viewpoint or motivating ideology’’ but, instead,

‘‘limit[ed] specific procedural tools and strategies that grantee attorneys

may utilize in the course of carrying out their legal advocacy’’). We see that

as a distinction only with respect to the degree of the incursion on the first

amendment right. See R. Briffault, supra, 35 Ind. L. Rev. 822. Thus, Legal

Services Corp. is instructive to the extent that it identifies a first amendment

interest in content, and we go on to consider whether that content restriction

may be justified by a compelling governmental interest.
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to publicly funded judicial candidates would change

content of first amendment political speech, creating

first amendment violation). But see Montoya v. Herrera, 276 P.3d 952, 958 (N.M. 2012) (noting that expenditure limitations imposed by state public financing act

were ‘‘completely unrelated to the content of the candidate’s speech’’ in concluding that act’s ‘‘restriction on

campaign contributions [was] not a method for restricting speech’’). Because public financing program regulations that restrict political expression operate to burden

candidates’ core first amendment speech, we apply

strict scrutiny and look beyond voluntariness to determine whether they are ‘‘narrowly tailored’’ to achieve

‘‘the traditional goals of public funding,’’ namely, (1)

promoting participation in the program, (2) ‘‘reducing

fundraising burdens and the corrupting effects of contributions and the pursuit of contributions on government

[decision making],’’ (3) facilitating candidate communications with the electorate, and (4) protecting the fiscal

integrity of the program. R. Briffault, supra, 35 Ind. L.

Rev. 828–29; see Corren v. Condos, supra, 898 F.3d

222 n.6 (stating in dictum that court would apply ‘‘the

applicable level of scrutiny’’ to condition that burdened

candidate’s rights); L. Mayer, supra, 46 Conn. L. Rev.

1060–62 (urging application of strict scrutiny to funding

conditions that burden free speech, with condition narrowly tailored to achieve compelling state interest);

see also Reed v. Gilbert, supra, 576 U.S. 171 (‘‘[content

based] restrictions on speech . . . can stand only if

they survive strict scrutiny, which requires the [g]overnment to prove that the restriction furthers a compelling

interest and is narrowly tailored to achieve that interest’’ (internal quotation marks omitted)); Pursuing

America’s Greatness v. Federal Election Commission,

831 F.3d 500, 510–512 (D.C. Cir. 2016) (federal election

regulation banning unauthorized political action committees from using candidate’s name in title of website
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or social media page was content based regulation subject to strict scrutiny and was not narrowly tailored to

achieve asserted compelling governmental interest of

preventing ‘‘voter confusion’’).

We now turn to the nature of the restriction at issue

in this case. As the parties discussed in their briefs and

at oral argument before this court, it is essential for

candidates to be able to communicate where they stand

on issues in relation to other candidates and public

officials. The invocation by name of prominent political

figures—some of whom may happen to be candidates

elsewhere on the ballot in a particular election—will

sometimes provide the most meaningful and effective

way for a candidate to explain to voters their political

ideals, policy commitments, and the values that they

hope to bring to the office that they seek. Being able

to categorize oneself as, for example, an opponent of

the ‘‘Biden Democrats’’ or the ‘‘Trump Republicans’’ is

of unquestionable rhetorical value to a candidate seeking office in polarized times. This is particularly so for

state legislative races, such as those at issue in this

case, in which the plaintiffs’ communications invoke

principles of Civics 101 in emphasizing their role as a

check and balance on the executive branch, and particularly their opposition to the policies that had become

synonymous in the public discourse with the political

agenda associated with Governor Malloy.

Although references to other political figures, including those who may also be candidates in different races,

may be of great rhetorical importance, we also conclude

that the commission may apply the ‘‘direct furtherance’’

standard, as articulated in its Advisory Opinion, to preclude publicly funded candidates from using committee

funds to ‘‘[promote] the defeat of or [attack] a candidate

[who] is not a direct opponent of the candidate sponsoring the communication, but is in a different race . . . .’’

That restriction is not by itself facially an unconstitu-
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tional condition in violation of the first amendment

insofar as it is integral to the governmental spending

program because it ensures that public moneys are

spent only on qualifying campaigns without exceeding

the amount of the grant allotted per race. See General

Statutes § 9-702 (c). As the commission argues, protecting the state fisc via preventing the circumvention

of spending and eligibility limitations presents a compelling governmental interest to support the restriction.18 See Federal Election Commission v. Colorado

Republican Federal Campaign Committee, supra, 533

18 The commission contends that euphemisms can be substituted for direct

references to Governor Malloy and that financial workarounds can be implemented, such as sharing the cost of the portions of the campaign messaging

that pertain to Governor Malloy with an entity such as a town or state

party committee, or the campaign of Governor Malloy’s opponent. Providing

workarounds to avoid the negative effect of a campaign finance law through

adjusting messaging does not, without more, save the law from violating

the first amendment because compelling such is itself content discrimination

and ‘‘contravenes the fundamental rule of protection under the [f]irst

[a]mendment, that a speaker has the autonomy to choose the content of his

own message.’’ (Internal quotation marks omitted.) Arizona Free Enterprise

Club’s Freedom Club PAC v. Bennett, supra, 564 U.S. 739; see Federal

Election Commission v. Wisconsin Right to Life, Inc., supra, 551 U.S. 477

n.9 (opinion announcing judgment) (that speakers may avoid burdens of

law ‘‘by changing what they say’’ does not render law compliant with first

amendment). This is particularly so in public financing cases in which the

candidate committee’s spending is subject to an overall cap, meaning that

the public funds necessarily affect the amount of the funds available for

the otherwise impermissible communication. See R. Briffault, supra, 35 Ind.

L. Rev. 832–33; see also General Statutes § 9-702 (c) (setting forth overall

limitations on expenditures in general and primary elections under program).

Indeed, the ease of circumvention undercuts the constitutional viability of

a restriction. See Citizens United v. Federal Election Commission, supra,

558 U.S. 364 (precedent allowing restrictions on independent political expenditures by labor unions and for-profit corporations was not supported by

compelling governmental interests because it was ‘‘undermined by experience since its announcement’’). The availability of such workarounds, however, is relevant in determining whether the restriction is in fact sufficiently

narrowly drawn to advance the asserted governmental interest. See D. Warren, Note, ‘‘My Way and/or the Highway: Exploring the ‘Adequacy’ of the

Alternative Channels Test in Conditional Speech Cases,’’ 11 First Amend.

L. Rev. 636, 688–89 (2013) (urging courts to consider presence of alternative

channels separate from initial ‘‘constitutional deficiency of the speech

restriction’’ to determine whether it survives heightened scrutiny).
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U.S. 437, 456 (concluding that ‘‘[the] circumvention of

valid contribution limits . . . is a valid theory of corruption’’ in sustaining coordinate spending limit applicable to political parties under FECA); Corren v.

Condos, supra, 898 F.3d 223 (restriction of private contributions to publicly funded candidates is supported

by compelling state interest because, ‘‘if such contributions were not limited, grants of public funds would

simply serve as stipends to candidates who would continue private fundraising efforts and thereby reintroduce the detriments of private fundraising that public

election financing schemes were designed to avoid’’);

Republican National Committee v. Federal Election

Commission, supra, 487 F. Supp. 285–86 (dictum

emphasizing that ‘‘reasonable limits and conditions’’ on

‘‘the expenditure of public funds are necessary to the

effectiveness of a [public financing] program’’). We also

conclude, however, that, if the ‘‘direct furtherance’’

standard is applied in a way that muzzles publicly

funded candidates’ political speech beyond that necessary to prevent the funding of campaign speech with

respect to a clearly identified candidate running in a

different race, it is a content based restriction that is

an unconstitutional condition in violation of the first

amendment. That line is marked by the ‘‘functional

equivalent of express advocacy’’ test articulated in Chief

Justice Roberts’ opinion in Federal Election Commission v. Wisconsin Right to Life, Inc., supra, 551 U.S.

469–70.

II

APPLICATION OF THE ‘‘FUNCTIONAL EQUIVALENT

OF EXPRESS ADVOCACY’’ TEST TO DETERMINE

WHETHER CAMPAIGN SPEECH REFERRING

TO A CANDIDATE IN A DIFFERENT

RACE IS PROPERLY SUBJECT

TO RESTRICTIONS

In determining whether campaign messaging by a

publicly funded candidate who uses the name of a candi-
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date for a different office as a rhetorical device to refer

to a set of policies opposed (or supported) by the publicly funded candidate constitutes impermissible electoral communications, rather than a constitutionally

protected message in ‘‘direct furtherance’’ of the publicly funded candidate’s own campaign for office, we,

like the trial court, find instructive the ‘‘functional equivalent of express advocacy’’ test articulated in Chief

Justice Roberts’ controlling opinion in Federal Election

Commission v. Wisconsin Right to Life, Inc., supra, 551

U.S. 469–70 (opinion announcing judgment),19 which

builds on the analysis of Buckley v. Valeo, supra, 424

U.S. 1. The functional equivalent test arises from the

regulatory distinction between permissible ‘‘ ‘issue discussion’ ’’ and prohibited ‘‘ ‘express advocacy’ of a candidate’s election or defeat,’ ’’ with respect to the

constitutionally permissible reach of campaign finance

laws as applied to corporate or labor union speech.

(Internal quotation marks omitted.) National Organization for Marriage v. McKee, 649 F.3d 34, 52 (1st Cir.

2011), cert. denied, 565 U.S. 1234, 132 S. Ct. 1635, 182

L. Ed. 2d 233 (2012). As the United States Court of

Appeals for the First Circuit has observed, the ‘‘division’’ between these concepts ‘‘has played an important,

and at times confounding, role in a certain set of modern

[United States] Supreme Court election law precedents.

Though the contours (and significance) of the distinction have never been firmly fixed, the core premise is

that regulation of speech expressly advocating a candidate’s election or defeat may more easily survive constitutional scrutiny than regulation of speech discussing

political issues more generally.’’ Id. The United States

19 Although the United States Supreme Court’s decision in Wisconsin Right

to Life was sharply divided as to various points in that case, a majority of

the court has subsequently described Chief Justice Roberts’ opinion adopting

the functional equivalent of express advocacy test for the as applied challenge in that case as ‘‘controlling’’ on that point. Citizens United v. Federal

Election Commission, supra, 558 U.S. 332–33.
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Supreme Court initially embraced this standard inBuckley v. Valeo, supra, 424 U.S. 39–44, to determine whether

a campaign spending restriction suffered from statutory

‘‘overbreadth—i.e., that statutes that reached issue discussion might be deemed to regulate impermissibly a

substantial amount of speech protected by the [f]irst

[a]mendment . . . .’’20 National Organization for Marriage v. McKee, supra, 53.

Specifically, in Buckley, the United States Supreme

Court considered the constitutionality of § 608 (e) (1)

of FECA, which had the ‘‘plain effect’’ of ‘‘prohibit[ing]

all individuals, who are neither candidates nor owners

of institutional press facilities, and all groups, except

political parties and campaign organizations, from voicing their views ‘relative to a clearly identified candidate’ through means that entail aggregate expenditures

of more than [$1000] during a calendar year.’’ (Emphasis

added.) Buckley v. Valeo, supra, 424 U.S. 39–40. Addressing potential vagueness concerns, the court noted that

the statute defined the terms ‘‘expenditure,’’ ‘‘clearly

identified,’’ and ‘‘candidate,’’; (internal quotation marks

omitted) id., 41; but did not provide a ‘‘definition clarifying what expenditures are ‘relative to’ a candidate.’’ Id.

The court observed that, although the provision could

be read for ‘‘the phrase ‘relative to’ a candidate . . . to

mean ‘advocating the election or defeat of’ a candidate,’’

this reading did not eliminate vagueness concerns

because ‘‘the distinction between discussion of issues

and candidates and advocacy of election or defeat of

20 We note that the First Circuit has questioned the long-term utility of

the express advocacy/issue discussion distinction, insofar as it had been

used to scrutinize limits on independent expenditures by corporations and

unions, in the wake of the United States Supreme Court’s decision inCitizens

United v. Federal Election Commission, supra, 558 U.S. 310, ‘‘which held

limitations on such expenditures by corporations and unions to be unconstitutional, and thus effectively prohibited any law limiting independent expenditures regardless of the identity of the regulated entity.’’ National

Organization for Marriage v. McKee, supra, 649 F.3d 54.
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Markley v. State Elections Enforcement Commission

candidates may often dissolve in practical application.

Candidates, especially incumbents, are intimately tied

to public issues involving legislative proposals and governmental actions. Not only do candidates campaign

on the basis of their positions on various public issues,

but campaigns themselves generate issues of public

interest.’’ Id., 42.

Declining to import any subjective considerations of

speaker intent, the United States Supreme Court emphasized that the risks of impinging free discussion could

‘‘be avoided only by reading § 608 (e) (1) as limited to

communications that include explicit words of advocacy of election or defeat of a candidate, much as the

definition of ‘clearly identified’ in § 608 (e) (2) requires

that an explicit and unambiguous reference to the candidate appear as part of the communication.’’ (Emphasis

added.) Id., 43. Accordingly, the court ‘‘construed [the

statute] to apply only to expenditures for communications that in express terms advocate the election or

defeat of a clearly identified candidate for federal office.’’21

Id., 44. It elaborated that such ‘‘express words of advocacy of election or defeat’’ include words and phrases

‘‘such as ‘vote for,’ ‘elect,’ ‘support,’ ‘cast your ballot

for,’ ‘Smith for Congress,’ ‘vote against,’ ‘defeat,’ [and]

‘reject.’ ’’ Id., 44 n.52; see footnote 23 of this opinion

(‘‘express words of advocacy’’ are known colloquially

as ‘‘magic words’’ (internal quotation marks omitted));

see also Buckley v. Valeo, supra, 44–45 (concluding that

federal act’s ‘‘expenditure limitations impose far greater

restraints on the freedom of speech and association

21 The United States Supreme Court noted that the statute defined ‘‘clearly

identified to require that the candidate’s name, photograph or drawing, or

other unambiguous reference to his identity appear as part of the communication. Such other unambiguous reference would include use of the candidate’s initials (e.g., FDR), the candidate’s nickname (e.g., Ike), his office

(e.g., the [p]resident or the [g]overnor of Iowa), or his status as a candidate

(e.g., the Democratic [p]residential nominee, the senatorial candidate of the

Republican Party of Georgia).’’ Buckley v. Valeo, supra, 424 U.S. 43–44 n.51.
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than do its contribution limitations’’ and that ‘‘the governmental interest in preventing corruption and the

appearance of corruption is inadequate to justify § 608

(e) (1)’s ceiling on independent expenditures’’).

Subsequently, in Wisconsin Right to Life, the United

States Supreme Court considered an overbreadth challenge to § 203 of the Bipartisan Campaign Reform Act

of 2002 (BCRA), 2 U.S.C. § 441b (b) (2), as applied to

challenges to restrictions on federal campaign advertising. See Federal Election Commission v. Wisconsin

Right to Life, Inc., supra, 551 U.S. 455–57 (opinion

announcing judgment). Expanding on the logic of Buckley, the court, in a controlling opinion authored by Chief

Justice Roberts, again declined to adopt a test that

would ‘‘[turn] on the speaker’s intent to affect an election,’’ because that would be inconsistent with ‘‘our

profound national commitment to the principle that

debate on public issues should be uninhibited, robust,

and wide-open.’’ (Internal quotation marks omitted.)

Id., 467 (opinion announcing judgment). Emphasizing

the importance of freedom of speech on matters of

public concern without fear of penalty, Chief Justice

Roberts’ opinion held that ‘‘the proper standard for an

as-applied challenge to BCRA § 203 must be objective,

focusing on the substance of the communication rather

than amorphous considerations of intent and effect.

. . . It must entail minimal if any discovery, to allow

parties to resolve disputes quickly without chilling

speech through the threat of burdensome litigation.

. . . And it must eschew the open-ended rough-andtumble of factors, which invit[es] complex argument in

a trial court and a virtually inevitable appeal. . . . In

short, it must give the benefit of any doubt to protecting

rather than stifling speech.’’22 (Citations omitted;

22 Chief Justice Roberts further explained that ‘‘contextual factors . . .

should seldom play a significant role in the [functional equivalent] inquiry.

Courts need not ignore basic background information that may be necessary

to put an ad in context—such as whether an ad describes a legislative issue

that is either currently the subject of legislative scrutiny or likely to be the
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Markley v. State Elections Enforcement Commission

emphasis added; internal quotation marks omitted.) Id.,

469 (opinion announcing judgment). Chief Justice

Roberts wrote that, ‘‘[i]n light of these considerations,

a court should find that an ad is the functional equivalent of express advocacy only if the ad is susceptible

of no reasonable interpretation other than as an appeal

to vote for or against a specific candidate.’’ Id., 469–70

(opinion announcing judgment). Acknowledging that

‘‘the distinction between discussion of issues and candidates and advocacy of election or defeat of candidates

may often dissolve in practical application,’’ Chief Justice Roberts emphasized that ‘‘[d]iscussion of issues

cannot be suppressed simply because the issues may

also be pertinent in an election. [When] the [f]irst

[a]mendment is implicated, the tie goes to the speaker,

not the censor.’’ (Emphasis added; internal quotation

marks omitted.) Id., 474 (opinion announcing

judgment).

Turning to the facts of Wisconsin Right to Life, Chief

Justice Roberts applied this standard and concluded

that the three advertisements at issue were ‘‘plainly not

the functional equivalent of express advocacy.’’ Id., 470

(opinion announcing judgment). Chief Justice Roberts

observed: ‘‘First, their content is consistent with that

of a genuine issue ad: The ads focus on a legislative

issue, take a position on the issue, exhort the public to

adopt that position, and urge the public to contact public officials with respect to the matter. Second, their

content lacks indicia of express advocacy: The ads do

not mention an election, candidacy, political party, or

challenger; and they do not take a position on a candidate’s character, qualifications, or fitness for office.’’ Id.;

subject of such scrutiny in the near future . . . but the need to consider

such background should not become an excuse for discovery or a broader

inquiry of the sort [that] . . . raises [f]irst [a]mendment concerns.’’ (Citation

omitted; internal quotation marks omitted.) Federal Election Commission

v. Wisconsin Right to Life, Inc., supra, 551 U.S. 473–74 (opinion announcing judgment).
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see id., 473 (opinion announcing judgment) (concluding

that advertisements were ‘‘issue ads,’’ rather than election ads, when they stated Wisconsin senators’ office

contact information and positions on judicial nomination filibusters and provided hyperlink to website that

contained election related materials, and noting that

‘‘[a]ny express advocacy on the [website], already one

step removed from the text of the ads themselves, certainly does not render an interpretation of the ads as

genuine issue ads unreasonable’’); see also Citizens

United v. Federal Election Commission, supra, 558 U.S.

324–26 (concluding that film, ‘‘Hillary,’’ was ‘‘the functional equivalent of express advocacy’’ because it, ‘‘in

essence, is a [feature length] negative advertisement

that urges viewers to vote against Senator [Hillary Rodham] Clinton for President’’ through use of ‘‘historical

footage, interviews with persons critical of her, and

voiceover narration’’ targeted to her fitness for office);

Human Life of Washington Inc. v. Brumsickle, 624

F.3d 990, 1015 (9th Cir. 2010) (The challenged advertisements, which did not mention the physician-assisted

suicide ballot initiative by name, were ‘‘the functional

equivalent of express advocacy’’ because their timing

related to the pending referendum, and they were ‘‘susceptible of no reasonable interpretation other than as

an urgent appeal to vote down the measure. The communications explicitly state that physician-assisted suicide has reentered the realm of public debate and that

the situation demands action.’’), cert. denied, 562 U.S.

1217, 131 S. Ct. 1477, 179 L. Ed. 2d 302 (2011).

We emphasize that ‘‘careful judicial scrutiny’’ is

required in determining whether a communication is

‘‘ ‘the functional equivalent of express advocacy’ ’’

because the United States Supreme Court intended that

standard, which ‘‘has the potential to trammel vital

political speech,’’ to provide ‘‘clear notice as to what

communications could be regulated, thereby ensuring
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that political expression would not be chilled.’’ North

Carolina Right to Life, Inc. v. Leake, 525 F.3d 274,

283–84 (4th Cir. 2008). We also recognize that the timing

of the communications is not, without more, a significant contextual factor in the analysis because ‘‘[t]hat

the ads were run close to an election is unremarkable’’

when, as in Connecticut, ‘‘[e]very ad covered by [the

statute] will by definition air just before a primary or

[a] general election.’’ (Emphasis in original.) Federal

Election Commission v. Wisconsin Right to Life, Inc.,

supra, 551 U.S. 472 (opinion announcing judgment); see

General Statutes § 9-601b (b) (7) (A) (excluding from

definition of ‘‘expenditure’’ those communications

made ‘‘prior to the ninety-day period preceding’’ applicable election or primary). This, of course, renders

Buckley’s still critical ‘‘magic words’’ paradigm of even

greater significance in the analysis in this case.23 M.

23 Indeed, commentators have observed that the Buckley test, which identifies specific trigger words that indicate a communication is electioneering

rather than issue related, remains instructive because it is only modestly

different in scope and application from the functional equivalent test that

the United States Supreme Court later applied in Wisconsin Right to Life.

See R. Briffault, ‘‘WRTL II: The Sharpest Turn in Campaign Finance’s Long

and Winding Road,’’ 1 Alb. Government L. Rev. 101, 123 (2008) (describing

functional equivalent test as ‘‘vague and uncertain’’ with effect of ‘‘modestly

increas[ing] the constitutionally permissible scope of regulation’’ compared

to ‘‘Buckley’s magic words test’’); R. Esenberg, ‘‘The Lonely Death of Public

Campaign Financing,’’ 33 Harv. J.L. & Pub. Policy 283, 309–10 (2010)

(although ‘‘the [United States Supreme] Court does not explicitly return to

the regime of magic words, it should not be difficult for advertisers to

frame election cycle communications as ‘genuine issue advocacy’ ’’ because

Wisconsin Right to Life ‘‘creates a rather large safe harbor for independent

expenditures mentioning candidates but purporting to focus on issues’’); R.

Hasen, ‘‘Beyond Incoherence: The Roberts Court’s Deregulatory Turn in

FEC v. Wisconsin Right to Life,’’ 92 Minn. L. Rev. 1064, 1103 (2008) (‘‘In

sum, the [Wisconsin Right to Life] principal opinion’s test separating the

functional equivalent of express advocacy, which must be paid for by corporate or union [political action committee] funds, from genuine issue advocacy, which may be paid for from corporate or union treasury funds, provides

a broad safe harbor for corporations and unions. It allows them to spend

large sums seeking to influence the outcome of elections. Though there are

line-drawing problems that may vex academics and courts, corporations

and unions can safely stay within the limits of the law and still run ads
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Kasper, ‘‘Magic Words and Millionaires: The Supreme

Court’s Assault on Campaign Funding,’’ 42 J. Marshall

L. Rev. 1, 21 (2008); see footnote 23 of this opinion.

Turning to the record in this case, we note that our

review of three of the five communications at issue,

namely, exhibits 2, 3, and 6 before the commission,

reveals nothing that renders them the functional equivalent of express advocacy or campaign speech with

respect to Governor Malloy, who it is undisputed is a

‘‘clearly identified’’ candidate within the meaning of the

regulatory scheme. First, and most significant, they lack

any of Buckley’s magic words, namely, express references to the ongoing election with respect to Governor

Malloy; they do not suggest that a vote for Mazurek

would be tantamount to a vote for Governor Malloy or

Democratic policies. See Buckley v. Valeo, supra, 424

U.S. 44 n.52. To be sure, none is complimentary of

Governor Malloy or the policies that he supported. Nevertheless, none indicates in any way that Governor Malloy was running for reelection in 2014, or that support

for the plaintiffs would be integral to defeating the

candidacy of Governor Malloy or any other Democrat

seeking office. Rather, they are phrased in a way that

appears to view the political control of Governor Malloy

and his Democratic allies in Hartford as a given; they

highlight the plaintiffs’ role as a legislative check and

balance against policies endorsed by Governor Malloy

and his Democratic allies. Put differently, these three

advertisements do not convey a different meaning in

likely to affect and intended to affect the outcome of elections.’’); M. Kasper,

‘‘Magic Words and Millionaires: The Supreme Court’s Assault on Campaign

Funding,’’ 42 J. Marshall L. Rev. 1, 21 (2008) (‘‘In the end, issue ads have

come full circle. Under Buckley, a corporation or union could run issue ads

and escape FECA by simply avoiding the magic words, regardless of how

blunt the electioneering message. . . . But after [Wisconsin Right to Life],

we are back where we started. In order to escape FECA and BCRA, a

corporation or union need only avoid the magic words (the old and the

new), and, it appears, any character assassination.’’).
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2014, when Governor Malloy was running for reelection

as an incumbent, than they would have in 2012 or 2016,

when he was simply in office as the sitting governor;

they are not addressed at all to the ongoing gubernatorial election. Thus, timing aside—which necessarily

coincides with the timing of the plaintiffs’ own election—we cannot conclude that these communications

are ‘‘susceptible of no reasonable interpretation other

than as an appeal to vote . . . against’’ Governor Malloy. Federal Election Commission v. Wisconsin Right

to Life, Inc., supra, 551 U.S. 470 (opinion announcing

judgment).

The communications admitted into evidence as

exhibits 4 and 5 before the commission present a closer

question with respect to whether they were the functional equivalent of express advocacy with respect to

Governor Malloy’s reelection. Both used words somewhat evocative of an ongoing negative campaign against

Governor Malloy, which was supported by Sampson.

In addition to highlighting Sampson’s legislative role,

the third communication, exhibit 4 before the commission, highlights Sampson’s desire for a ‘‘[n]ew [d]irection’’ and expressly implores voters to ‘‘change course

and STOP Governor Malloy and the majority Democrats’ dangerous agenda,’’ and both of those statements

appear to advocate change in a way that might seem out

of place for an incumbent candidate seeking reelection.

(Emphasis added.) This communication, however, also

might reasonably be understood as urging electoral

resistance—in the form of Sampson—to the leadership

and initiatives of Governor Malloy and his legislative

allies. The fourth communication, exhibit 5 before the

commission, is generally an attack on Mazurek’s legislative record during his prior service as a state representative, but it refers expressly to Governor Malloy’s

‘‘campaign for [g]overnor’’ in criticizing Mazurek’s vote

on Public Acts, Spec. Sess., July, 2010, No. 10-1 (Spec.
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Sess. P.A. 10-1),24 observing that it gave Governor Malloy’s campaign ‘‘an additional $3 million dollars’’ via a

general increase in public finance grant amounts. With

the election cycle timing not a significant factor in the

analysis, an isolated mention of a Malloy ‘‘campaign’’

in the context of the other criticisms of his policies

is not the functional equivalent of campaign speech.

Moreover, to the extent that the oblique references to

‘‘change’’ and a ‘‘campaign’’ in these communications

may in some way be understood to be the functional

equivalent of express advocacy, ‘‘the tie goes to the

speaker,’’ namely, the plaintiffs. Federal Election Commission v. Wisconsin Right to Life, Inc., supra, 551 U.S.

474 (opinion announcing judgment); see, e.g., Citizens

United v. Federal Election Commission, supra, 558 U.S.

367–68; Federal Election Commission v. Wisconsin

Right to Life, Inc., supra, 472 (opinion announcing judgment); Buckley v. Valeo, supra, 424 U.S. 44 n.52. Accordingly, we conclude that the trial court improperly

dismissed the plaintiffs’ administrative appeal from the

decision of the commission.

The judgment is reversed and the case is remanded

to the trial court with direction to sustain the plaintiffs’

administrative appeal.

In this opinion the other justices concurred.

24 We note that Spec. Sess. P.A. 10-1, ‘‘An Act Concerning Clean Elections,’’

made myriad changes to the state election laws, including amending General

Statutes § 9-705 to double the major party gubernatorial election grant from

$3 million to $6 million. See Spec. Sess. P.A. 10-1, § 3. Mazurek initially

voted against the bill enacted as Spec. Sess. P.A. 10-1, and he changed his

vote to override a gubernatorial veto of that bill. See Senate Bill No. 551,

July, 2010 Spec. Sess.