State of Vermont v. Republican Governors Ass’n, No. 759-10-10 Wncv (Toor, J., Oct. 20, 2014).

[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.]
                                                     VERMONT SUPERIOR COURT
                                                        WASHINGTON UNIT
                                                         CIVIL DIVISION

                                                                         │
STATE OF VERMONT,                                                        │
 Plaintiff                                                               │
                                                                         │
    v.                                                                   │      Docket No. 759-10-10 Wncv
                                                                         │
REPUBLICAN GOVERNORS                                                     │
ASSOCIATION,                                                             │
 Defendant                                                               │
                                                                         │

                      RULING ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

           The State of Vermont brought this action in 2010 against the Republican Governors

Association (RGA) to enforce registration, disclosure, and contribution limit requirements of its

election laws.1 The State alleged that RGA was active in Vermont during the 2010 Dubie–

Shumlin race, but refused to register and file reports as a political committee, and accepted

contributions in excess of the $2,000 limit.

                                                            Procedural History

           In 2011, Judge Crawford granted summary judgment for the State, ruling that Vermont’s

“disclosure and disclaimer requirements” were legally enforceable, and that the $2,000

contribution limit was constitutional. Decision on Cross-Motions for Summary Judgment at 11

(Oct. 4, 2011).2 However, in August of 2012, in the process of ruling on a discovery issue related

to the RGA’s affirmative defenses, Judge Crawford sua sponte reopened the issue of the $2,000


1
  The State brought a similar case, absent the contribution limit claim, against Green Mountain Future (GMF), a
Vermont political committee organized by the Democratic Governors Association. The trial court found GMF in
violation and the Vermont Supreme Court affirmed. See State v. Green Mountain Future, No. 758-10-10 Wncv,
2011 WL 8472923 (Vt. Super. Ct. June 2011) (Crawford, J.), aff’d, 2013 VT 87, 194 Vt. 625.
2
  RGA’a affirmative defenses were not addressed in that ruling. The parties appear to agree they have since been
resolved in the State’s favor, although the court cannot find any written decision to that effect.
contribution limit. He noted that “things have changed with the announcement that [the State]

will not enforce the $2,000 limit” due to recent case law. Decision on Motion to Quash

Subpoenas at 2 (Aug. 31, 2012). Thus, he stated his intention not to enforce that part of his

earlier decision and invited briefing. The State then argued that the announcement about not

enforcing the $2,000 limit, and the cases that led to it, related only to “independent-expenditure

only” groups. See State of Vermont’s Memorandum on Enforcement of $2,000 Contribution

Limit (Sept. 24, 2012). RGA responded that it makes only “independent expenditures.” See

Defendant’s Response to Plaintiff’s Memorandum on Enforcement of $2,000 Contribution Limit

(Oct. 10, 2012).

         Judge Crawford had a hearing on the issue—apparently oral argument only, not an

evidentiary hearing—and subsequently ruled that he did not have sufficient evidence on which to

decide the question. Order re: Enforcement of $2,000 Contribution Limit at 4 (Oct. 31, 2012).

Discovery was then allowed on the issue, and the case was then stayed for a period of time for

other reasons. Finally, the State filed a motion for summary judgment on the remaining issue and

RGA responded with a cross-motion. Those motions are what is currently before the court.3

                                            The Constitutional Issue

         Federal First Amendment jurisprudence leading up to Citizens United v. Federal Election

Commission, 558 U.S. 310 (2010), was approaching the conclusion that limitations on

contributions to political committees making “independent expenditures” on candidate-specific

political speech are unconstitutional. See, e.g., North Carolina Right to Life, Inc. v. Leake, 525



3
  As noted above, in granting summary judgment for the State initially, Judge Crawford deferred ruling on the
RGA’s affirmative defenses of laches and selective prosecution. He later issued a discovery ruling that seemed to
entirely reject those defenses, although he permitted additional third-party discovery on those issues. The parties
appear to agree they have since been resolved in the State’s favor, although the court cannot find any express written
decision to that effect.


                                                          2
F.3d 274, 293–95 (4th Cir. 2008). The cases generally do not define “independent expenditure,”

but there is a federal election statute that provides a definition. Although it is not entirely clear

that the cases rely upon this definition, the statute defines an independent expenditure as one:

           (A) expressly advocating the election or defeat of a clearly identified candidate;
           and

           (B) that is not made in concert or cooperation with or at the request or suggestion
           of such candidate, the candidate’s authorized political committee, or their agents,
           or a political party committee or its agents.

52 U.S.C. § 30101(17), formerly 2 U.S.C. § 431(17).4

           In Citizens United, the Supreme Court ruled that the only legitimate interest in limiting

campaign expenditures is the reality or appearance of quid pro quo corruption. Independent

expenditures, precisely because they are independent, as a matter of law present no such risk.

Citizens United, 558 U.S. at 356–61. Thus, there is no constitutional basis for limiting corporate

independent expenditures.

           Although Citizens United addressed only expenditures by corporations, courts then began

applying the same rationale to contributions to political committees making only independent

expenditures. See, e.g., Catholic Leadership Coalition of Texas v. Reisman, 764 F.3d 409, 442

(5th Cir. 2014) (noting “a growing judicial consensus among the circuit courts that limits on

corporate         contributions       to    independent-expenditure-only              committees   are   likewise

unconstitutional”); SpeechNow.org v. Federal Election Comm’n, 599 F.3d 686, 694 (D.C. Cir.

2010) (“In light of the Court’s holding as a matter of law that independent expenditures do not

corrupt or create the appearance of quid pro quo corruption, contributions to groups that make

only independent expenditures also cannot corrupt or create the appearance of corruption.”).

Under that analysis, if a group expends funds on behalf of a candidate without coordinating with


4
    The Vermont statute at the time relevant to this case had no definition of the term.

                                                             3
the campaign or a party committee, contributions to that group may not be limited.

        Subsequent to Judge Crawford’s initial ruling finding RGA in violation of Vermont’s

contribution limit, Judge Sessions issued a decision in Vermont Right to Life Committee, Inc. v.

Sorrell, 875 F.Supp.2d 376 (D.Vt. 2012), aff’d, 758 F.3d 118 (2014). The plaintiffs in that case

sought, among other things, to bar the State from enforcing the same contribution limit that is at

issue in this case. Vermont Right to Life Committee (VRLC) had created two additional

committees: Vermont Right to Life Political Committee (VRLC-PC), which would coordinate

with or contribute directly to candidates, and Vermont Right to Life Committee–Fund for

Independent Political Expenditures (VRLC-FIPE), which would make independent expenditures

only. The plaintiffs argued that because VRLC-FIPE was organized as a separate entity and

made independent expenditures only, under Citizens United there could be no constitutional

basis for limiting contributions to it.

        Judge Sessions rejected the argument that VRLC-FIPE’s status as a separate entity alone

was determinative. He observed:

        The issue of independence from candidates is the touchstone of the contribution
        limit’s constitutionality. A number of the courts that have struck down limits on
        contributions applied to independent-expenditure-only PACs have made clear
        their reasoning would not hold to the extent the assumption of independence were
        undermined.

Vermont Right to Life Committee, 875 F.Supp.2d at 405. The court examined the evidence. It

found the entities highly integrated and without any “significant functional divide between them

for the purposes of campaign finance law.” Id. at 408. Funds moved between them as needed

without regard for source or purpose of the expenditure. Even if the constitution permitted one

entity to carry on both independent expenditures and coordination and contributions, the court

reasoned, there was no way to ensure that unlimited contributions to VRLC-FIPE were not used



                                                4
for VRLC-PC’s ends. On that basis, the court concluded that Vermont’s contribution limit was

enforceable against VRLC-FIPE. Id. at 410.

         It was that decision that spurred the Attorney General to announce that he would no

longer “enforce the $2,000 contribution limit for those PACs that demonstrate they make only

independent expenditures.” Attorney General’s Guidance Regarding Independent Expenditure

Committees (July 25, 2012).           The parties agree that, as the law now stands, a state may not

limit contributions to a political committee that makes independent expenditures only. They

disagree sharply on what that means and what effect it has in this case. 5

                                                     Discussion

         There is no dispute that RGA accepted contributions well in excess of the $2,000 limit. It

argues, however, that it made independent expenditures only, and that any candidate

contributions or coordination in Vermont were done through Green Mountain Prosperity (GMP),

a Vermont-focused political committee that RGA set up and registered in Vermont. The State

argues that there is no functional distinction between RGA and GMP, and thus RGA did not

make only independent expenditures.

                                              A. Preliminary Issues

         As a preliminary matter, the State argues that RGA missed its opportunity to raise this

contribution-limit issue and the court should not address it now. For its part, RGA argues that

Judge Crawford’s prior orders discussing his view of the law control.

5
  On January 23, 2014, Governor Shumlin signed into law Act 90. 2013, No. 90 (Adj. Sess.), available at
http://www.leg.state.vt.us/DOCS/2014/ACTS/ACT090.PDF. Act 90 repealed Vermont’s then-existing campaign
finance statute, 17 V.S.A. §§ 2801–2893, including the contribution limit at issue in this case, and replaced it with a
new one, 17 V.S.A. §§ 2901–2986. The new law defines “independent expenditure-only political committee” as “a
political committee that conducts its activities entirely independent of candidates; does not give contributions to
candidates, political committees, or political parties; does not make related expenditures; and is not closely related to
a political party or to a political committee that makes contributions to candidates or makes related expenditures.”
Id. § 2901(10). At the time of the events at issue here, however, no such definition existed. The parties agree that
the now-repealed statute continues to apply in this case.


                                                           5
         The court rejects both arguments. This issue was reopened by Judge Crawford out of

concern about a possible violation of political free speech rights. While no doubt frustrating to

the State, the court can understand a judge wishing to correct a prior interlocutory ruling he now

suspected might be in error as a result of changes in the law.                       Likewise, while the court

understands that RGA would like Judge Crawford’s 2012 discussion of the law to be binding, he

did not actually rule definitively on any substantive motion with regard to the $2,000 limit after

the issue was reopened. The issue is now squarely before the court.

                                                   B. The Law

         The parties take very different approaches to the law.                      The State argues that the

independence that avoids the appearance of corruption and allows unlimited contributions

requires strict separation between the independent-expenditure-only committee and the candidate

or another committee that coordinates with or contributes to the candidate. It presents an eight-

part test for determining independence.6 As the State conceded at oral argument, however, no

case sets forth the eight-step test it proffers. Rather, it has combined the criteria from different

cases.

         RGA, on the other hand, argues that adequate independence exists so long as funds that

support direct contributions or coordination come from an account into which only compliant

contributions—that is, contributions under $2,000 each—were deposited.

         An organization that makes both independent expenditures and coordinated campaign

contributions is referred to as a “hybrid” entity. The courts are divided on how to analyze such

6
  “To maintain adequate independence from candidates and parties, an independent-expenditure-only PAC and any
related direct-contribution PAC must (1) each have its own board of directors and staff, (2) each have its own people
plan and implement political strategies and spending decisions, (3) each conduct its own fundraising appeals, (4)
assiduously segregate funds so that funds raised by the independent-expenditure group are not used to pay costs
incurred by the direct expenditure group, (5) prevent the movement of funds from the independent expenditure
account to the direct expenditure account, (6) each pay its own overhead costs, (7) maintain separate identities in the
public view, and (8) not use the dual accounts as a mechanism to circumvent reporting requirements or valid
contribution limits.” State’s Motion for Summary Judgment 17–18 (filed Mar. 21, 2014).

                                                          6
organizations. See, e.g., Alabama Democratic Conference v. Broussard, 541 Fed.Appx. 931, 934

n.3 (11th Cir. 2013) (“Several courts in other circuits have addressed whether the establishment

of separate bank accounts for independent expenditures and campaign contributions by a hybrid

organization, such as ADC, sufficiently eliminates the possibility of corruption or the appearance

of corruption to render contribution limits unconstitutional. These courts have reached

conflicting conclusions.”). As another court recently noted, “[c]ontributions earmarked solely for

use in independent expenditures by ‘hybrid’ political committees that engage in both

independent expenditures and direct contributions to candidates appears destined to be a coming

campaign-finance law battleground.” Catholic Leadership Coalition of Texas v. Reisman, 764

F.3d 409, 442 (5th Cir. 2014).

        RGA’s two-account theory finds support in a pre-Citizens United decision, Emily’s List

v. Fed. Election Comm’n, 581 F.3d 1 (D.C. Cir. 2009). That case said that a hybrid organization

“simply must ensure, to avoid circumvention of individual contribution limits by its donors, that

its contributions to parties or candidates come from a hard-money account.”7 Id. at 12. In other

words, a single “hybrid” entity may both contribute to or otherwise coordinate with a candidate

and receive unlimited contributions in support of independent expenditures—with no functional

separation within the organization—so long as separate accounts distinguish funds received and

used for the different types of activities. Carey v. Fed. Election Comm’n, 791 F.Supp.2d 121,

135 (D.D.C. 2011) (“As long as Plaintiffs strictly segregate these funds . . . they are free to seek

and expend unlimited soft money funds geared toward independent expenditures.”); see also,

Republican Party of New Mexico v. King, 741 F.3d 1089, 1100–01 (10th Cir. 2013).

        Other courts have rejected that proposition. See, e.g., Stop This Insanity, Inc. Emp.

7
  A “hard money” account means an account subject to contribution limits; “soft money” is money “that is not
subject to source and amount limits[.]” Carey v. Fed. Election Comm’n, 791 F. Supp. 2d 121, 126 (D.D.C. 2011);
Shays v. Fed. Election Comm’n, 528 F. 3d 914, 917 (D.C. Cir. 2008).

                                                      7
Leadership Fund v. Fed. Election Comm’n, 902 F.Supp.2d 23, 43 (D.D.C. 2012) (“When a

single entity is allowed to make both limited direct contributions and unlimited independent

expenditures, keeping the bank accounts for those two purposes separate is simply insufficient to

overcome the appearance that the entity is in cahoots with the candidates and parties that it

coordinates with and supports.”).8

        The Second Circuit in Vermont Right to Life Committee clearly rejected the same two-

account theory that RGA espouses here. Vermont Right to Life Committee, Inc. v. Sorrell, 758

F.3d 118 (2014). The Court explained that independence requires a lack of coordination with the

candidate:

        Although some courts have held that the creation of separate bank accounts is by
        itself sufficient to treat the entity as an independent-expenditure-only group, we
        do not believe that is enough to ensure there is a lack of “prearrangement and
        coordination.” A separate bank account may be relevant, but it does not prevent
        coordinated expenditures—whereby funds are spent in coordination with the
        candidate.

Id. at 141 (citation and footnote omitted). Accord, Alabama Democratic Conference v.

Broussard, 541 Fed.Appx. 931, 935 (11th Cir. 2013) (“When an organization engages in

independent expenditures as well as campaign contributions, . . . its independence may be called

into question and concerns of corruption may reappear. At the very least, the public may believe

that corruption continues to exist, despite the use of separate bank accounts, because both

accounts are controlled and can be coordinated by the same entity.”).

        The court finds the Second Circuit’s analysis persuasive. When the issue is coordination

between different political committees, or between different parts of one committee, one of


8
  The court also distinguished Emily’s List as not addressing either contribution limits or “independent
expenditures.” Stop This Insanity, 972 F. Supp. 2d at 41 (“[N]one of the expenditures at issue involved express
advocacy for or against a clearly identified federal candidate. Rather, the expenditures involved in EMILY’s List
were either issue-based advocacy or voter turnout and registration activities.”).


                                                       8
which coordinates with a candidate, there must be “[s]ome actual organizational separation

between the groups . . . to assure that the expenditures are in fact uncoordinated.” Id. The Court

noted that whether the groups actually are functionally distinct “may depend on factors such as

the overlap of staff and resources, the lack of financial independence, the coordination of

activities, and the flow of information between the entities.” Id. at 142. It did not need to

determine precisely how functionally distinct any two such groups need be because in the case

before it the two entities were so thoroughly enmeshed financially and otherwise that they were

“functionally indistinguishable.” Id. at 145.9

        The court adopts the Second Circuit’s analysis for purposes of this case. Some functional

distinction between related committees is required. Otherwise, the “separation” between the

parts of a hybrid organization is merely an accounting entry. Expenditures cannot be truly

“independent” if they are entirely controlled by the identical entity that is simultaneously making

expenditures in coordination or cooperation with a campaign or party.

                                                   C. Analysis

        The conclusion that some functional distinction between RGA and GMP is necessary

decides the matter in this case. RGA disputes few of the facts alleged by the State. See RGA’s

Statement of Disputed Material Facts (filed Apr. 24, 2014) (limiting the factual dispute to the

State’s allegations in paragraphs 19, 22, 23, 69, and 75 of its Statement of Undisputed Material

Facts (filed Mar. 21, 2014)). RGA’s own Statement of Undisputed Material Facts (filed Mar. 24,

2014) addresses the process by which RGA financed GMP, but does not address the larger issue

of functional separation.


9
 The Court implied that there may be room for flexibility with regard to organizations with limited resources. See
Vermont Right to Life Committee, 758 F.3d at 145 (“We acknowledge, though, that especially with committees that
operate with low funding levels, small staff, and few resources, it will be difficult at times to maintain separation
among those committees.”).

                                                         9
       There is no dispute that RGA determined and controlled all of GMP’s activities and

finances.   See generally the affidavits of RGA representatives Michael G. Adams (State’s

Appendix at E), Joanne M. Parker (State’s Appendix at F), and Dennise R. Casey (State’s

Appendix at N). There is no meaningful sense in which GMP was separate from RGA. GMP

was a bank account and the name under which RGA operated for certain purposes in Vermont,

but it had no employees or members. It had no separate board, and no separate tax identification

number. No allocation of time or expenses of the staff was ever made between the two entities.

GMP received all of its funds directly from RGA and never solicited or received a contribution

from anyone. RGA solicited and received contributions nationally. It would then allocate funds

to GMP to cover GMP’s approved expenses, re-characterizing self-selected contributions to itself

as contributions to GMP for reporting purposes in Vermont. RGA reported as its own certain

expenditures to the IRS, but reported to Vermont that those same expenditures were made by

GMP. People making contributions to RGA would not be aware that their contributions might

end up in individual state PACs such as GMP.

       In addition, ads paid for from RGA and GMP accounts were produced by a media firm

that was not aware there was any distinction between the two entities, or even that GMP existed.

Ads run under the GMP name were billed to and paid for by RGA.               Research done on

Democratic gubernatorial candidate Deborah Markowitz, and later shared with Republican

candidate Brian Dubie, was paid in part by RGA and part by GMP. An ad called “Taxing

Shumlin” was paid for by RGA, not GMP, but stated at times that it was paid for by RGA and at

other times that it was paid for by GMP.

       In sum, there is no indication of any true functional separation between RGA and GMP.

But for a separate checkbook, they were one and the same. The $2,000 contribution limit



                                               10
constitutionally applies to RGA.

                                            Order

       The State’s motion for summary judgment is granted; RGA’s is denied. The case will be

set for a penalty hearing.

Dated at Montpelier this 20th day of October 2014.




                                                        ___________________
                                                        Helen M. Toor
                                                        Superior Court Judge




                                              11
