Thomas Breen photos
Mayor Elicker (right) and one side of the contested flyer.
New Haven’s public financing program board members delayed acting on a complaint filed against the mayor’s reelection campaign until after the election, leaving up in the air just how directly taxpayer-funded local candidates can urge voters to support ballot measures like this year’s charter revision.
That was the outcome of an emergency meeting of New Haven’s Democracy Fund board, which was held Monday night online via Zoom.
After roughly an hour of public debate and another 40 minutes of private executive-session deliberations, the board members for the city’s clean-elections public financing program decided to put off a ruling on Republican Town Committee Chair John Carlson’s complaint against two-term incumbent Democrat Mayor Justin Elicker’s reelection campaign.
That complaint concerned a two-sided flyer sent out by the Elicker campaign that urges voters to support Tuesday’s charter-revision ballot question, which, if approved, would increase terms for mayor, city clerk, and alders from two to four years each starting in the 2027 municipal election year, among other changes.
In his complaint, Carlson alleged that Elicker’s reelection campaign violated Democracy Fund rules by calling so directly for New Haveners to vote yes for the ballot measure, when local law prohibits publicly financed candidates from spending money on urging voters to support or oppose ballot measures.
Sec. 2 – 822 (10) c. (ii) of the city’s code of ordinances, which is not cited in Carlson’s complaint, states that qualified campaign expenditures for Democracy Fund-backed candidates shall not include “expenditures to support or oppose any ballot measure, political committee, or the campaign of any candidate other than the candidate for whom the funds were originally designated.”
Elicker and his campaign staff and volunteers have argued that the two-sided charter-focused flyer fits within the guidance provided to the campaign by the Democracy Fund’s administrator: that is, that a candidate can spend money on messaging that lets voters know exactly where he stands on a ballot measure as part of informing New Haveners as to his overall platform.
New Haven’s Democracy Fund provides public matching dollars and grants to mayoral candidates who cap individual donations at $445 apiece and who forswear money from PACs and special interests. Elicker is the only mayoral candidate in this year’s general election, on Nov. 7, who is participating in the Democracy Fund. He’s participated in the Democracy Fund in every mayoral election he’s run in.
Both sides got to repeat their arguments before the Democracy Fund board members Monday night.
Carlson argued that “absolute power corrupts absolutely,” and that letting Elicker get away with a campaign flyer focused primarily on the charter revision ballot question and not his campaign “will be encouraging future users [of the Democracy Fund] to violate the rules and do whatever they want and consequences be damned.”
Elicker and his campaign treasurer Susan Metrick emphasized that the mayor’s campaign proactively reached out to the Democracy Fund’s administrator, Aly Heimer, for guidance on how they can best inform voters about the charter revision measure and Elicker’s stance on it. They asked if they could send out flyers urging New Haveners to vote yes on the ballot question, and Heimer replied that the messaging should be about the candidate’s position on the ballot question and how it fits into his overall platform.
“We were not willfully violating rules and we were not negligent,” Metrick said. “We deliberately sought out guidance from appropriate experts in a grey area, and we followed that guidance.” She said the charter-focused campaign flyers cost around $6,800 in total to make and send out.
Democracy Fund board emergency meeting on Monday.
Ultimately, the Democracy Fund board members decided to kick any decision on the matter — did Elicker’s campaign lit violate local rules? Should his campaign be penalized in some way? — until after Tuesday’s election, and until after further investigation.
“The Democracy Fund Board hears the concerns of John Carlson, the complainant, and the public views on this issue,” board Chair Sergio Rodriguez said at the end of Monday’s meeting in a statement endorsed by all of his board colleagues. “The Board also understands that the Elicker Campaign sought the advice of the Administrator and the SEEC. The Democracy Fund Board has determined that it would be unfair to draw any conclusions without further investigation. The Democracy Fund is cognizant of our responsibility to conduct careful deliberation and not make any hasty decisions on the eve of an election. There are some matters of fact and law that require further investigation that cannot be completed at this time. The Administrator will issue a written request for additional information from the campaign for supplemental documentation.”
One of the arguments that appeared to persuade the Democracy Fund board to hold off on acting Monday night came from board member Aaron Goode, who pointed out that the Connecticut Supreme Court in September heard oral arguments on a matter not too dissimilar from this one.
In that case, two Republican state senators, Joe Markley and Rob Sampson, who participated in a statewide public financing program, sued the State Elections Enforcement Commission (SEEC) for penalizing them for sending out campaign literature criticizing then-Gov. Dan Malloy. The SEEC found that the publicly funded candidates had violated campaign finance rules by spending campaign cash attacking a candidate in a totally different race than the ones they were running in. The Republican state senators argued that part of their platforms for their own candidates was opposing the then-governor, and that the SEEC’s ruling infringed upon their free speech rights.
“I think a lot of the same facts and law involved in this case are involved with what we’re discussing tonight,” Goode said. “I would like to see what kind of guidance, if any, comes out of that decision from the state Supreme Court. I think it’s very relevant to this conversation. I would not want to run afoul of this pending decision, why may affect the constitutional muster of our ordinance.”