State of Vermont v. Green Mountain Future, No. 758-10-10 Wncv (Crawford, J. June 28, 2011)

[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the
accompanying data included in the Vermont trial court opinion database is not guaranteed.]




                                                  STATE OF VERMONT

SUPERIOR COURT                                                                  CIVIL DIVISION
WASHINGTON UNIT                                                                 DOCKET NO.: 758-10-10 Wncv


STATE OF VERMONT

v.

GREEN MOUNTAIN FUTURE

               DECISION ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

This case presents a single constitutional issue:

Does the First Amendment excuse a political action committee which runs a negative ad
about a candidate from compliance with Vermont’s election laws requiring certain
disclosures by political organizations even though the ads do not expressly advise the
populace to “vote against” the candidate?

The facts are not in dispute, and both sides have moved for summary judgment.

                                                              FACTS

Green Mountain Future is an issue advocacy organization registered with the Internal
Revenue Service. Its filing with the IRS discloses a post office box address in Barre,
Vermont. During the month of September 2010, it reported contributions of $533,955
and expenditures of $429,186. Almost all contributions were made by the Democratic
Governors Association. The expenditures were principally for media production and
“buy” in connection with two television advertisements which aired in September and
October 2010.

The scripts for the two advertisements appear in the record. Both focus on the positions
of then-Lieutenant Governor Dubie concerning licensing of the Vermont Yankee nuclear
power plant in Vernon, Vermont. The advertisements are strongly negative in tone.
They open with statements about the leakage of radioactive material at the plant. They
report that Lt. Governor Dubie favors keeping the plant open. They conclude with the
statements “Vermont Yankee open another 20 years would be a disaster. Tell Brian
Dubie he’s wrong about Vermont Yankee” and “Want Vermont Yankee open another 20
years? Tell Brian Dubie no.”

                                                      Procedural History

The State filed this action seeking a declaration that Green Mountain Future is in
violation of Vermont election disclosure laws by failing to register with the state as a
political committee (17 V.S.A. § 2831), failing to file reports (17 V.S.A. § 2811), and
failing to include its address in the two advertisements (17 V.S.A. § 2892). In addition, it
seeks civil penalties for each failure to comply.

Green Mountain Future filed a counterclaim in which it challenged the state’s efforts to
regulate it as a political committee and to require it to place its name and address on the
advertisements as violations of the First Amendment and the Due Process Clause of the
Fourteenth Amendment. The constitutional claims have two aspects: first, that the First
Amendment prohibits state regulation of issue advocacy and, second, that Vermont’s
registration and disclosure requirements are overly broad and too vague to be enforced.

                                        ANALYSIS

The motions for summary judgment raise both statutory and constitutional questions.
The court will consider these in the following order:

       1. Do the registration and disclosure requirements in the Vermont election law
          apply to the activities of Green Mountain Future in running the two ads
          concerning Lt. Gov. Dubie’s position on Vermont Yankee?

       2. Do these statutory requirements pass the “exacting scrutiny” test required by
          the U.S. Supreme Court for the regulation of speech in this context?

       3. Are these provisions too vague or overly broad to be enforced—either on their
          face or “as applied” in this case?


   1. Application of the Vermont election law to Green Mountain Future and the
      Vermont Yankee advertisements.

The State seeks to enforce two provisions of the Vermont campaign finance laws. 17
V.S.A. § 2831 requires any political committee or party spending more than $500 to
register with the Secretary of State. 17 V.S.A. §§ 2891–2893 require the sponsor of any
“electioneering communication” to provide its name and address as part of the
communication, to file a report with the Secretary of State, and to provide a copy of the
report to any candidate named or shown in the communication. This is commonly known
as a “disclaimer” requirement. Both statutory requirements contain their own definitional
provisions.

A. Registration of the PAC

The registration of political committees or “PACs” is governed by 17 V.S.A. §§ 2801,
2831. (Intervening provisions concerning contributions to candidates and their
campaigns are not relevant.) Section 2801(4) defines a political committee as:




                                              2
       Any formal or informal committee of two or more individuals, or a
       corporation, labor organization, public interest group, or other entity, not
       including a political party, which receives contributions of more than $500
       and makes expenditures of more than $500 in any one calendar year for
       the purpose of supporting or opposing one or more candidates,
       influencing an election, or advocating a position on a public question in
       any election or affecting the outcome of an election. (emphasis supplied)

Section 2831 requires such political committees to register with the Vermont secretary of
state as soon as their funds reach the $500 threshold. A PAC subject to registration must
provide its full name, address, the name of its treasurer, and the name of its bank. There
is a separate requirement for reporting expenditures after they are made to the election
authorities at the state and local levels.

In its Statement of Undisputed Material Facts, Green Mountain Future describes itself as
“an independent issue advocacy organization registered with the Internal Revenue
Service.” It denies making any expenditure that required it to register as a political
committee or file disclosure reports with the Secretary of State. It admits that its
expenditures exceeded $500. It denies that its ads expressly advocate the election or
defeat of any candidate. “The communications do not include any words of express
advocacy such as ‘vote for’ or ‘vote against.’ Its communications do not include
references to any election, voting, campaigns, or even mention that any person in the ad
is a candidate for office.” Green Mountain Future’s Memo in support of motion for
summary judgment at 6 (filed Feb. 15, 2011).

Factually, the court applies an objective standard. Federal Election Commission v.
Wisconsin Right to Life, Inc., 551 U.S. 449, 469 (2007). It is not necessary to determine
the subjective intent of the leadership of the PAC in deciding to place the advertisements.
The court looks instead at the content of the advertisements to determine whether the
language and images demonstrate a purpose of supporting or opposing a candidate or
influencing the outcome of the election.

It would require the cheerful credulity of a very young child to conclude that the two
political advertisements, prominently featuring Lt. Governor Dubie’s name and
photograph and aired just prior to the gubernatorial election, had neither the intention nor
the effect of advocating against his election. In resolving a motion for summary
judgment, the court is not required to accept the bare denial of the party opposing the
motion. White v. Quechee Lakes Landowners’ Ass’n, 170 Vt. 25, 28 (1999) (“mere
conclusory allegations without facts to support them” are insufficient to oppose summary
judgment). In this case, the court will draw the obvious inference from the undisputed
facts that the advertisements, objectively viewed, were created and broadcast for the
purpose of opposing a candidate.

Setting aside for a moment the defendant’s constitutional objections to the registration
requirement, it is clear without any need for testimony or additional evidence that Green
Mountain Future’s activities in Vermont, specifically the expenditure of almost a half-



                                             3
million dollars to run two ads attacking Lt. Governor Dubie’s position on Vermont
Yankee, meet the statutory criteria for a PAC subject to registration under 17 V.S.A. §
2831. Both ads oppose a candidate in an election. Both ads fall clearly within the types
of political activity which trigger the registration requirement for the PAC which runs the
ad.

Similarly, the two advertisements meet the statutory definition of “electioneering
communications” subject to disclaimer and reporting requirements which appear at 17
V.S.A. §§ 2891–2893. They were broadcast on television. They refer to a clearly
identified candidate for office. They plainly oppose Mr. Dubie’s fitness for office by
raising questions about his judgment and policy choices. They are “attack ads”—
completely legal, commonly used by all sides in the current political environment, and
subject to the statutory requirement that their sponsor provide its name and address as
part of the ad and report the expenditure to the election authorities and Mr. Dubie.

With respect to the disclosure requirement, Green Mountain Future also contends that
listing its web address is sufficient to satisfy the requirement to provide its address. The
statutory language is clear. The purpose of the “name and address” requirement is to
enable voters to know who paid for the communication and to facilitate enforcement.
See 1997, No. 64, § 1 (“Identification of persons who publish political advertisements
assists in enforcement of the contribution and expenditure limitations established by this
act.”). The plain and ordinary meaning of “address” in the expression “name and
address” is a physical or mailing address, either of which aids in identification. A web
address merely guides one to a website that says whatever its author chooses, does not
necessarily identify anyone, and can easily be used to mislead the viewer. “Address”
means physical or mailing address.

The court answers its first question in the affirmative. The undisputed evidence
submitted by both sides demonstrates that Green Mountain Future spent considerably
more than $500 to run two ads which opposed a candidate for public office. These facts
required registration and disclosure unless the court holds the election law provisions to
be unconstitutional.

    2. First Constitutional Challenge: “Exacting Scrutiny.”

Three U.S. Supreme Court decisions dominate the field of constitutional challenge to the
requirements of registration and disclosures by political committees. These are Buckley
v. Valeo, 424 U.S. 1 (1976); McConnell v. Federal Election Commission, 540 U.S. 93
(2003); and Citizens United v. Federal Election Commission, 130 S.Ct. 876 (2010). All
three cases concern challenges to federal election statutes, but the constitutional
principles apply equally to the regulation of election activities under state law.1 These

1
  In reviewing these cases, the court has in mind the different treatment of legislation which restricts
contributions to political parties and committees, direct expenditures for political speech, and legislation
which requires registration and disclosure of the identities of individuals and associations engaged in
political spending. Over time the U.S. Supreme Court has developed different constitutional tests for these
three areas of regulation. The statutory provisions at issue in this case concern only the registration and


                                                     4
cases establish beyond any reasonable dispute that disclosure and disclaimer
requirements of campaign-related expenditures by PACs are constitutional under the
“exacting scrutiny” test because these measures are necessary to inform the electorate
about the source of contributions and the true origins of political advertising.

In Citizens United, the Supreme Court unequivocally endorsed the constitutionality of
disclosure and disclaimer requirements under the exacting scrutiny standard.

        Disclaimer and disclosure requirements may burden the ability to speak,
        but they “impose no ceiling on campaign-related activities,” and “do not
        prevent anyone from speaking,” The Court has subjected these
        requirements to “exacting scrutiny,” which requires a “substantial
        relation” between the disclosure requirement and a “sufficiently
        important” governmental interest.

        In Buckley, the Court explained that disclosure could be justified based on
        a governmental interest in “provid[ing] the electorate with information”
        about the sources of election-related spending. The McConnell Court
        applied this interest in rejecting facial challenges to BCRA §§ 201 and
        311. There was evidence in the record that independent groups were
        running election-related advertisements “‘while hiding behind dubious and
        misleading names.’” The Court therefore upheld BCRA §§ 201 and 311
        on the ground that they would help citizens “‘make informed choices in
        the political marketplace.’”

Citizens United v. Federal Election Commission, 130 S.Ct. 876, 914 (citations omitted).

Turning to the Vermont provisions, the analysis is identical. Both the registration
requirement imposed by 17 V.S.A. § 2831 and the disclaimer requirements imposed by
17 V.S.A. §§ 2891–2893 impose a degree of regulation on political speech. They neither
prohibit the speech nor regulate its content. As this case demonstrates, however, they are
not welcomed by those subject to the regulation because they place a burden on activities
by political committees which have come to be recognized as legal in our democracy.
For this reason, they are subject to an intermediate level of “exacting scrutiny”—less than
“strict scrutiny” reserved for inherently suspect legislation and greater than the standard
applied to the police power of the states in other legislative areas.

The same “exacting scrutiny” review which the Supreme Court applied to successive
versions of the federal election statute in Buckley, McConnell, and Citizens United
establishes the constitutionality of the Vermont disclosure and disclaimer provisions.
Like the federal requirements, these provide information to the electorate. They require
disclosure of the true sponsor of an advertisement. Voters who watch TV ads can
investigate the source of the information they receive if the ad provides disclosure and the

disclosure of spending by Green Mountain Future and the related disclaimer issue (mandatory identification
of the source of an advertisement).



                                                    5
Secretary of State provides registration. The burden on Green Mountain Future is
minimal and, as its memo demonstrates, consistent with IRS reporting requirements with
which it already complies. Setting aside the vagueness challenge for a moment, the
disclosure and disclaimer requirements impose a minimal burden of compliance to
achieve greater honesty and transparency in our politics. By any measure, this trade-off
meets the “exacting scrutiny” test imposed on such statutes.

3. Second constitutional challenge: vagueness and overbreadth

Since disclosure and disclaimer requirements have consistently been held to pass the
“exacting scrutiny” test, those opposed to such requirements have focused principally on
claims of vagueness and overbreadth. In other words, they argue—as here—that while it
may lie within the power of the legislature to impose disclosure and disclaimer
requirements, the laws are either too vague to give fair notice to a political committee that
its ad triggered the requirements or too broad in the sense that it imposed requirements on
groups not involved in activities related to campaigns and elections.

A. Buckley, McConnell, and Citizens United

The development of a test or standard for vagueness and overbreadth for disclosure and
disclaimer requirements begins with the Buckley decision in 1976, which upheld
requirements of political spending by individuals or associations which appeared in the
Federal Election Campaign Act of 1971, 86 Stat. 3, as amended by the FECA
Amendments of 1974, 88 Stat. 1263. The Court held that such requirements could be
saved from challenges of “vagueness” and “overbreadth” only if they were construed to
apply only to “express advocacy” on behalf of a candidate.

The Buckley Court developed this “savings construction” in the “contribution and
expenditure limitations” portion of the opinion. The Court found vague the expression
“any expenditure . . . relative to a clearly identified candidate” in 18 U.S.C. § 608(e)(1),
which it interpreted to refer to “advocating the election or defeat of” a candidate.2
Buckley, 424 U.S. at 42. “Expenditure” itself was separately defined as a payment “made
for the purpose of influencing” an election. 18 U.S.C. § 591(f)(1). Buckley interpreted §
608(e)(1) narrowly to include only advertisements or similar expenses which contained
an explicit direction to vote for or against a candidate (“All the way with LBJ”). By
grafting the express advocacy limitation onto the more general language of the
definitions, the Buckley decision created a bright line between expenditures treated as
addressing public issues, which are protected from regulation by the First Amendment,
and those which expressly support or oppose individual candidates, which are
appropriately subject to regulation. Later in the opinion, the Court imported the savings
construction of 18 U.S.C. § 608(e)(1) into the separately defined “expenditure” that
triggered the disclosure and reporting requirements. This latter definition of
“expenditure” included “purchase[s], payment[s] . . . made for the purpose of (A)


2
 All of the statutes relied upon in Buckley are available in an appendix to that opinion. This court’s
citation to those statutes refers to their appearance in that appendix.


                                                      6
influencing the nomination for election, or the election, of any person to Federal
office . . . .” 2 U.S.C. § 431(f)(1).

In time, the Buckley requirement of express advocacy came to seen by many as an
insufficient response to the swelling chorus of “soft money” advertisements, frequently
negative, designed to influence the outcome of elections without explicitly telling anyone
how to vote. And, from the opposite perspective, others believed that restrictions on the
right of corporations to engage in political speech violated the First Amendment. These
contrary impulses towards more or less regulation of political speech have directed
legislative and judicial debate since Buckley.

In 2002, Congress enacted the Bipartisan Campaign Reform Act, Public L. No. 107-155,
116 Stat. 81 (2002) (amending the Federal Election Campaign Act of 1971 (“FECA”)), 2
U.S.C. §§ 431–457 (“BCRA”). BCRA created a new legal category—“electioneering
communications”—to regulate “soft money” ads. Any ad run within 60 days of the
general election (30 days for primaries and caucuses) which clearly identifies a candidate
for federal office and is “targeted to the relevant electorate” is subject to reporting and
disclosure requirements. 2 U.S.C. § 434(f)(3)(A)(i)(III).

The McConnell decision upheld these reporting and disclosure requirements. In the view
of the majority, Buckley’s “express advocacy” requirement was an exercise in statutory
construction necessary to save the specific language of the 1971 version of the FECA
from constitutional attack.3 It was not a general principle of constitutional law applicable
to all reporting and disclosure requirements. The new BCRA category of “electioneering
communications” included limiting provisions—especially the temporal limits of 60 and
30 days for general and primary elections respectively—which were sufficiently specific
and objective to place a political action committee or other group on notice that their
expenditure would trigger the requirements.

The McConnell decision rejected the Buckley bright-line test in sharply critical language.

        Nor are we persuaded, independent of our precedents, that the First
        Amendment erects a rigid barrier between express advocacy and so-called
        issue advocacy. That notion cannot be squared with our longstanding
        recognition that the presence or absence of magic words cannot
        meaningfully distinguish electioneering speech from a true issue ad.
        Indeed, the unmistakable lesson from the record in this litigation . . . is that
        Buckley’s magic-words requirement is functionally meaningless. Not only
        can advertisers easily evade the line by eschewing the use of magic words,
        but they would seldom choose to use such words even if permitted. And
        although the resulting advertisements do not urge the viewer to vote for or
        against a candidate in so many words, they are no less clearly intended to
        influence the election. Buckley’s express advocacy line, in short, has not

3
  The specific statutory language found to be unconstitutionally vague in Buckley was replaced with the
more concrete BCRA standards of (1) a broadcast; (2) identifying a candidate (3) aired within certain time
frames; and (4) targeted to an audience of at least 50,000, which cured the “vagueness” problem.


                                                     7
       aided the legislative effort to combat real or apparent corruption, and
       Congress enacted BCRA to correct the flaws it found in the existing
       system.

McConnell v. Federal Election Commission, 540 U.S. 93, 193–94 (2003) (citations
omitted).

The challenge to the reporting and disclosure requirements of BCRA was facial, which is
to say that it was a challenge to the law in every possible application. The court left open
the possibility of an “as applied” challenge by someone alleging discriminatory
enforcement or some other harm specific to an individual case.

As the Supreme Court’s most recent statement on the subject of disclosure and disclaimer
requirements, Citizens United carries particular weight. Although the case is best known
for largely erasing the distinction between individual and corporate political
expenditures, Citizens United included an “as applied” challenge to the FEC requirements
of registration and disclosure for a non-profit corporation engaged in “electioneering
communications” as that term is defined by federal law. The Court reaffirmed the
constitutional standard of “exacting scrutiny” of the regulation of electioneering activity.
Upon a showing of a substantial relationship between disclosure and a sufficiently
important governmental interest, private organizations engaged in electioneering can be
required to comply with federal election laws. The Court followed McConnell in
upholding the law against a facial challenge and noted that any challenge to such laws as
unconstitutional “as applied” would require proof of a reasonable probability of threats,
harassment, or reprisals against the private organization.

B. The Vermont provisions

In this case, the State seeks to enforce two provisions of the state election law. These are
the registration and reporting requirements for political committees (17 V.S.A. §§ 2811,
2831) and the identification of persons who pay for “electioneering communications” (17
V.S.A. § 2892).

17 V.S.A. § 2831 provides in relevant part:

       (a) Each political committee and each political party which has accepted
       contributions or made expenditure of $500.00 or more shall register with the
       secretary of state stating its full name and address, the name of its treasurer; and
       the name of the bank in which it maintains its campaign checking account within
       ten days of reaching the $500.00 threshold.

17 V.S.A. § 2811 supplements this provision with an additional requirement of a
“campaign finance report” to be filed by political committees subject to section 2831.

Section 2892 provides in relevant part:




                                              8
                 All electioneering communications shall contain the name and
         address of the person, political committee, or campaign who or which paid
         for the communication. The communication shall clearly designate the
         name of the candidate, party, or political committee by or on whose behalf
         the same is published or broadcast.

An “electioneering communication” is defined at § 2891 as:

                 Any communication, including communications published in any
         newspaper or periodical or broadcast on radio or television or over any
         public address system, placed on any billboards, outdoor facilities, buttons
         or printed material . . . that refers to a clearly identified candidate for
         office and that promotes or supports a candidate for that office, or attacks
         or opposes a candidate for that office, regardless of whether the
         communication expressly advocates a vote for or against a candidate.

Green Mountain Future contends that the two provisions are unconstitutional on their
face because they restrict speech and are too vaguely worded to give fair notice of their
import to people and organizations engaged in debate on public issues. It relies upon the
distinction in Buckley between express advocacy for or against a candidate (registration
required) and issue advocacy (registration unconstitutional). Green Mountain Future
recognizes that McConnell changed the rules and does not contest the state’s authority to
require registration and disclosure by a properly limited statute. However, Green
Mountain Future argues that Vermont’s authority is limited to the definition of
“electioneering communication” which appears in the 2002 BCRA.4 Otherwise, argues
Green Mountain Future, a statute, such as Vermont’s, is unconstitutionally vague and
remains subject to Buckley’s “magic words” construction.

The court rejects the argument that in the absence of legislative language equal in
specificity to BCRA, all disclaimer and disclosure requirements remain subject to the
Buckley requirement. Green Mountain Future’s argument fails to recognize either the
virtual reversal of the Buckley decision on this point by McConnell and Citizens United or
the enhanced specificity of the Vermont statutes.

Following Buckley, Congress responded to the “magic words” requirement by amending
the federal election law so that it applied within a particular timeframe to any ad that
mentions a candidate’s name. The new statute was not vague at all but made no attempt
to incorporate any more probing distinction between campaign advocacy and issue
advocacy than requiring that the ad identify a candidate. See McConnell, 540 U.S. at 190
(describing the language of the statute).

The new statute was challenged in McConnell. A principal argument raised in
McConnell was that the magic words requirement was, as Buckley at least implied, a

4
 Green Mountain Future clarifies in its April 11, 2011 filing that vagueness is its principal issue in this
case.



                                                       9
substantive constitutional boundary between campaign advocacy and issue advocacy, and
the new statute violated it by failing to clearly draw the same distinction. The McConnell
majority flatly rejected this argument, expressly distinguishing between vagueness and
the substantive constitutional issue. According to the McConnell Court, the Buckley
“magic words” savings construction was a matter of statutory interpretation only.5 The
new statute presented no such vagueness problem because, however broad, it was clear as
to its reach. As an apparently separate substantive constitutional matter, the McConnell
Court then explained, the “bright-line” requirements of Buckley were insufficient to meet
the need for registration and disclosure of the increasing numbers of “soft money”
organizations which sought to influence elections. There is no meaningful difference
“between an ad that urged viewers to ‘vote against Jane Doe’ and one that condemned
Jane Doe’s record on a particular issue before exhorting viewers ‘call Jane Doe and tell
her what you think.’” McConnell, 540 U.S. at 127. As a substantive matter, the Buckley
savings construction saved nothing. The Court ruled the new statute facially valid, not
overbroad. This facial validity clearly indicates that the new statute would be
constitutional in most of its applications.

The Court next returned to the matter of disclaimer and disclosure in Citizens United.
Citizens United essentially tried to bring an as-applied challenge to the disclosure and
disclaimer requirements of the federal statute. The Court disagreed in no uncertain terms.
“We rejected these arguments in McConnell . . . . And we now adhere to that decision as
it pertains to the disclosure provisions.” Citizens United v. Federal Election
Commission, 130 S.Ct. 876, 915 (2010) (emphasis added). Likening the disclosure
provisions to those it has upheld in the lobbying context, the Court rejected “Citizens
United’s contention that the disclosure requirements must be limited to speech that is the
functional equivalent of express advocacy.” Id. Citizens United thus was permitted to
argue that disclosure was unconstitutional as applied to it if there was “a reasonable
probability that the group’s members would face threats, harassment, or reprisals if their
names were disclosed.” Id. at 916. Otherwise, its as-applied challenge was foreclosed—
the disclaimer and disclosure requirements, even if they extended into issue advocacy, are
not overbroad.

Green Mountain Future’s attempt to impose a return to the Buckley rule (in which the
distinction between campaign and issue advocacy is crucial) fails to fully consider the far
more important precedents of McConnell and Citizens United (in which the distinction, in

5
  This holding of McConnell has been labeled “disingenuous” by one scholar. R. Briffault, McConnell v.
FEC and the Transformation of Campaign Finance Law, 3 Election L.J. 147, 168 (2004), quoted in Note,
The McConnell Corollary: Vague Laws Must Still Toe The Buckley Express Advocacy Line, 1 Seton Hall
Circ. Rev. 201 (2005). Professor Briffault currently is the Joseph P. Chamberlain Professor of Legislation
at Columbia Law School. See http://www.law.columbia.edu/faculty (last visited Apr. 21, 2011). He was
the “coauthor of an amicus brief submitted on behalf of twenty-five House of Representatives members
defending the constitutionality of BCRA” in McConnell. Note, supra, at 206 n.34. He is hardly the only
critic of the Court’s campaign finance decisions. Judge Richard Posner, in the wake of McConnell, called
these decisions “baffling and conflicted.” Majors v. Abell, 361 F.3d 349, 355 (7th Cir. 2004). Professor
Hasen, following Citizens United, called them necessarily conflicted but unnecessarily incoherent. See
generally R. Hasen, Citizens United and the Illusion of Coherence, 109 Mich. L. Rev. 581 (2011).



                                                    10
the disclosure context, matters far less, if at all).6 Courts typically require greater
exactitude in the First Amendment context because vagueness can have a chilling effect.
1 Smolla & Nimmer on Freedom of Speech § 6:15 (WL updated March 2011). Buckley,
McConnell, and Citizens United demonstrate that the direct regulation of political speech
is nearly completely intolerable to the Court, leading it to apply the vagueness and
overbreadth doctrines in the strictest way in that context. With McConnell and Citizens
United, it now should be clear that disclaimer and disclosure requirements are different in
kind. They “may burden the ability to speak, but they ‘impose no ceiling on campaign-
related activities,’ and ‘do not prevent anyone from speaking.’” Citizens United, 130
S.Ct. at 914 (citations omitted). Vagueness is not irrelevant in the disclosure context, but
the doctrine should not be applied to require the impossibly perfect exactitude required
by Buckley.

Green Mountain Future argues that, for purposes of registration, “political committee” is
vague and, for purposes of disclaimer and disclosure, “electioneering communications” is
vague. “Political committee” is defined as:

        any formal or informal committee of two or more individuals, or a
        corporation, labor organization, public interest group, or other entity, not
        including a political party, which receives contributions of more than
        $500.00 and makes expenditures of more than $500.00 in any one
        calendar year for the purpose of supporting or opposing one or more
        candidates, influencing an election, or advocating a position on a public
        question in any election or affecting the outcome of an election.

17 V.S.A. § 2801(4) (emphasis added). An “electioneering communication” is:

        any communication, including communications published in any
        newspaper or periodical or broadcast on radio or television or over any
        public address system, placed on any billboards, outdoor facilities, buttons
        or printed material attached to motor vehicles, window displays, posters,
        cards, pamphlets, leaflets, flyers, or other circulars, or in any direct
        mailing, robotic phone calls, or mass e-mails that refers to a clearly
        identified candidate for office and that promotes or supports a candidate
        for that office, or attacks or opposes a candidate for that office, regardless
        of whether the communication expressly advocates a vote for or against a
        candidate.

17 V.S.A. § 2891 (emphasis added).

Green Mountain Future’s argument, and the key problem with it, are evident in this
paragraph of its supporting memorandum:

6
 Green Mountain Future’s attempt to rely on Vermont Right to Life Committee, Inc. v. Sorrell, 221 F.3d
376, 386 (2d Cir. 2000), is similarly misplaced. That case predates McConnell by 3 years and Citizens
United by 10. It relies on Buckley and does not anticipate the subsequent development of the law.



                                                   11
                 The McConnell Court simply established that Congress and state
         legislatures may regulate political speech beyond express advocacy but
         only if the state enacts a statute like [the] BCRA definition of
         “electioneering communication” that is both easily understood and
         objectively determinable. If the statutory language used to regulate speech
         is vague then the Buckley bright-line standard between express advocacy
         and issue advocacy must be applied to ensure that political speech
         protected by the First Amendment is not regulated by the state.

Green Mountain Future’s memo at 15 (filed Feb. 15, 2011). First, McConnell and
Citizens United do not require disclosure provisions under state law to be identical to
those of BCRA. These cases construe federal election law, not state provisions. More
importantly, as the analysis of the case law above demonstrates, any vagueness problem
with the Vermont statutes, following McConnell and Citizens United, does not require a
return to the Buckley magic-words savings construction. Buckley limited the statute at
issue there to expressly stated advocacy because the Court perceived the need to draw a
bright-line distinction between issue advocacy and campaign advocacy in both the
expenditure context and the disclosure context. McConnell and Citizens United did away
with that “rigid barrier” in the disclosure context, rendering Buckley’s magic-words
construction inconsistent with contemporary disclosure provisions. Thus, if the Vermont
statutes were found to be vague, they presumably could be “saved” with a construction
that cures the vagueness based on current law, not the law the U.S. Supreme Court has
already abandoned.

In any event, the court finds neither term of the Vermont statutes to be vague. The
registration requirements are triggered if a political committee receives in contributions
and spends within a calendar year more than $500 “for the purpose of supporting or
opposing one or more candidates, influencing an election, or advocating a position . . .
affecting the outcome of an election.”7 The court interprets the alternative statutory
formulations of the purpose of the expenditure to be the equivalent of “supporting or
opposing one or more candidates.” The reference to candidates, which is defined with
specificity at 17 V.S.A. § 2801(1), ensures that this provision necessarily applies in the
election context only; “election” also is defined with specificity and is incorporated into
the definition of “candidate.” 17 V.S.A. § 2801(7). It also ensures that if the ad cannot
reasonably be viewed as referring to a candidate, the registration requirements are not
triggered. As this case demonstrates, ads, the expenditures principally at issue in this
case, that support or oppose a candidate in an election context, viewed in a reasonable,
objective manner, are not at all difficult to discern. The definition also contains a fixed
time limit: the calendar year. That one might invent an example of an expenditure that
presents a close case—none has been suggested in the parties’ filings—is insufficient to
render the statute vague.


7
  The “public question” portion of the definition does not apply to this case. It specifically refers to “an
issue that is before the voters for a binding decision.” 17 V.S.A. § 2801(8). It is not an amorphous
reference to any issue that might be on voters’ or candidates’ minds.


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The disclosure provisions apply to a communication that “refers to a clearly identified
candidate for office and that promotes or supports a candidate for that office, or attacks or
opposes a candidate for that office, regardless of whether the communication expressly
advocates a vote for or against a candidate.” This portion of the definition of
“electioneering communications” differs little in effect from the corresponding portion of
the definition of “political committee.” It requires that the ad identify a candidate,
support or oppose that candidate, and is necessarily time-limited. The time limit is
inherent in the reference to “candidate.” A candidate only exists under the statute if one
of the objectively verifiable criteria of § 2801(1) is satisfied. Any ad preceding a period
in which there is a “candidate” will not trigger these disclosure provisions.

Green Mountain Future’s assertions that its ads were solely related to nuclear policy
matters and had nothing to do with Mr. Dubie’s candidacy, and that citizens are unable to
reasonably understand what expenditures fall under these provisions are unreasonable.
Their only plausibility is constructed out of a legal rationalization in Buckley that the U.S.
Supreme Court completely dismantled in McConnell and Citizens United. Ordinary
citizens can understand what speech falls within these statutes. Anyone reviewing the
scripts of the Green Mountain Future’s two advertisements can only conclude that they
attack or oppose Lt. Governor Dubie.

As the U.S. Supreme Court said in McConnell, “The words ‘promote,’ ‘oppose,’ ‘attack,’
and ‘support’ clearly set forth the confines within which potential . . . speakers must act
in order to avoid triggering the provision. These words ‘provide explicit standards for
those who apply them’ and ‘give the person of ordinary intelligence a reasonable
opportunity to know what is prohibited.’” McConnell, 540 U.S. at 170 n. 64 (citation
omitted). Such words are not vague.

Although Green Mountain Future identifies cases striking down restrictions on content,
timing, contributions, and expenditures, with only one exception, no case it cites strikes
down mere registration or disclosure requirements. Four years before Citizens United,
the Fifth Circuit “saved” a Louisiana campaign disclosure provision with a Buckley
magic words construction. Center for Individual Freedom v. Carmouche, 449 F.3d 655
(5th Cir. 2006). The majority ruled that the “supporting, opposing, or otherwise
influencing” language of the statute suffered from the same vagueness as the language in
Buckley, McConnell did not change the rules once a statute is determined to be vague,
and that a Buckley savings construction thus was required. The Carmouche decision is
not persuasive. The majority’s determination of vagueness presumed the ongoing utility
of the bright-line distinction of Buckley and did not fully consider the effect of
McConnell. As the dissent in Carmouche pointed out, even if there was a vagueness
issue in the statute, McConnell clearly indicates that a savings construction no longer
needs to take the form of the one in Buckley.

There are other Vermont election law requirements such as a cap on expenditures by
political committees which raise important constitutional issues. See Randall v. Sorrell,
548 U.S. 230 (2006). In this case, the state does not seek to enforce any provisions
beyond registration and disclosure. Despite filing a counterclaim, Green Mountain



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Future does not seek any relief beyond striking down the registration and disclosure
provisions. The issue of limiting expenditures is not before the court.


   C. “As applied”

The claim that the registration and disclosure provisions may be constitutional in the
abstract but are unconstitutional as applied in this case requires proof of discrimination or
anticipated retribution. Citizens United v. Federal Election Commission, 130 S.Ct. 876,
914–15 (2010). Green Mountain Future offers no evidence that it has been singled out
for enforcement, that enforcement is politically motivated, or that disclosure would lead
to retribution. Green Mountain Future’s challenge is to the election law in general, not to
its application in this particular case.

The court answers its second and third questions in the negative. The court rejects the
claim that the registration and disclosure requirements are unconstitutional, either facially
or “as applied.”

                                           ORDER

For these reasons, the state’s motion for summary judgment with respect to liability is
granted; Green Mountain Future’s motion for summary judgment is denied. The court
will set a hearing on the scope of declaratory relief, civil penalties, and all other issues
related to the damages portion of the case.

Dated at Montpelier, Vermont this ____ day of June 2011.


                                               _____________________________
                                               Geoffrey W. Crawford, Presiding Judge




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