Wednesday, September 9, 2009

Technicalities can really ruin a good First Amendment case

The State of Connecticut contracts out some of its legal work to private lawyers. To avoid the appearance of any conflicts of interest, the state had a rule prohibiting these contracting law firms from making campaign contributions to candidates for state Attorney General. Sounds like a First Amendment problem. It isn't.

The case is Dean v. Blumenthal, decided on August 11. This case highlights some of the procedural roadblocks that can kill a good constitutional claim. Dean ran against incumbent Blumenthal for Attorney General. She needed the campaign contributions, and brought this lawsuit on the theory that the First Amendment recognizes contributions as free speech. My guess is the U.S. Supreme Court would agree with Dean. So why does the case fail?

First, mootness. The Court of Appeals has no jurisdiction to decide an academic dispute. There has to be a real case and controversy between the parties. There is none here, the Second Circuit rules. One week before the election, pending a ruling from the district court in this case, Blumenthal suspended the rule against these campaign contributions. Blumenthal never re-activated the contributions ban, and his attorney told the Court of Appeals that the ban would not be revived. Even after the district court ruled in his favor, Blumenthal did not revive the ban. While Blumenthal's promise not to resume the ban may not be enough to moot the case, "the Attorney General’s claim is bolstered by his voluntary practice of not enforcing the contractual prohibition over the past six years and of deleting the contractual prohibition over two years ago."

Also, "although '[v]oluntary cessation of illegal conduct does not necessarily render the controversy moot,' the Attorney General has further represented that Connecticut’s campaign finance legislation 'wholly and permanently superseded' the contractual bar [against these contributions], thus rendering it 'superfluous.'” All things considered, this case has mootness written all over it.

Another barrier to relief is qualified immunity. Dean sued for damages. This gets around the mootness problem if Dean can show she was somehow damaged when the rule was still in effect. If there really are damages, then all the mootness in the world will not end the lawsuit. Not so fast. Public officials are immune from suit if they did not violate a clearly-established right. It is not enough to say the First Amendment creates a clearly-established right. Under qualified immunity, the challenged conduct had to be illegal in light of existing case law on similar facts. Dean's lawyer, then, had to find cases that made it clear that the prohibition against campaign contributions in this context has already been deemed unconstitutional.

There are no such cases, the Court of Appeals holds. More to the point, there are no cases that were on the books when the campaign contributions rule was in effect. "We do not believe that a reasonable person would have known of a firmly established First Amendment right to receive campaign contributions when the challenged policy was in effect. Indeed, Dean has failed to cite any decision available during the relevant time period in which either this Court or the Supreme Court specifically held that a candidate has a First Amendment right to receive campaign contributions."

One case comes close, Randall v. Sorrell, 548 U.S. 230 (2d Cir. 2006), in which the Supreme Court struck down a Vermont statute’s limitations on campaign contributions. But Randall was decided a few years after the controversy arose in this case. Randall was not pre-existing case law relevant to the qualified immunity inquiry. Had the Supreme Court decided Randall a few years earlier, then Dean might be able to pursue this case. But that's no consolation to Dean. In constitutional law, sometimes timing is everything.

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