Wednesday, December 4, 2013

What’s the Magic Word?

By Sara Puls

State v. Green Mountain Future, 2013 VT 87

It’s like the old song says:


Put 'em together and who do you vote for?

. . .

Magic words often have a specific, and sometimes unintended, effect. They are often nonsensical phrases, used in fantasy fiction, requested by parents in response to ill-mannered children, and certain comic book heroes use magic words to activate their super powers. Here, “vote for,” “elect,” “support,” “cast your ballot for,” “Bob for Congress,” “vote against,” “defeat,” “reject,” or any variations thereof, were traditionally the eight “magic words” set forth by the United States Supreme Court to open the gateway to the magical world of Express Advocacy-land (which the SCOTUS locates somewhere between Tomorrow-land and the Enchanted Forest).

Here in Vermont’s mystical land of politics, today’s case is an appeal of a summary judgment decision of the trial court, which found that, even without saying the magic words, Appellant opened the door to Political Action Committee-land, and thus, violated a number of provisions of the Vermont campaign finance laws during the 2010 election.

In the 2010 general election, then-Lieutenant Governor, Republican Brian Dubie was running for Governor against the Democrat Peter Shumlin.  An “issue advocacy organization” (almost entirely funded by the Democratic Governors Association) registered with the IRS pursuant to 26 U.S.C. § 527 with a stated purpose, “to communicate with the citizens of Vermont about economic, environmental, and other issues of importance without expressly advocating the election or defeat of any candidate.”

In September and October of 2010, this organization ran television ads staring, non-other than, Dubie as the champion of the ever-so-popular Vermont Yankee Nuclear Power Station.  In an attempt to skirt PAC status and Vermont campaign laws, the ads did not mention the upcoming election for Governor, nor Dubie’s candidacy, and it did not urge voters to vote for a particular candidate.  Rather, they just portrayed Dubie as a simple, VT Yankee-loving guy, who merely hates Vermont and wants everyone to burn in a fiery nuclear disaster.  You know, we report, you decide stuff.


In Vermont, issue advocacy is a separate beast from a Political Action committee (“PAC”) which is defined by statute as an entity which receives and spends money, “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.”

If an organization is a PAC, then it is subject to registration and disclosure requirements. This is in addition to the identification requirements, which all election communications must follow. 

After these “issue advocacy” ads aired, the State filed an action in the trial court seeking a declaration that the organization was in violation of Vermont election laws for failing to register with the state as a PAC in violation of the registration requirement, failing to file reports in violation of the disclosure requirement for PACs, and failing to include its address in the two television advertisements in violation of the identification requirement.

The organization responded that their ads were “pure issue ads” because did not mention voting or the election.  These ads, they argued, were related solely to “nuclear policy”—albeit, conveniently aired right before the election and portraying candidate Dubie in a less than positive light.  (“I mean, c’mon, it’s not like we drew horns on him, at least not big ones.”)

Thus, the group argued they had not triggered PAC status or the “electioneering communications” identification requirement.  The group counterclaimed, making two constitutional arguments. 

First, the group argued that the First Amendment prohibits state regulation of issue advocacy. 

Second, it argued that Vermont’s registration requirements, its accompanying disclosure requirement, and the disclaimer requirement are unconstitutional because they are vague and overly broad, which therefore violated the First Amendment and the Due Process Clause of the Fourteenth Amendment to the United States Constitution.  The two parties filed cross motions for summary judgment.

The trial court rejected the organization’s “issue advocacy” arguments.  It found that the group had triggered PAC status when it made expenditures “for the purpose of supporting or opposing one or more candidates.”  The trial court further concluded that adopting this narrow construction of the PAC definition avoided the alleged vagueness and overbreadth concerns.

Having opened the gateway to PAC-land, the trial court found that the organization had violated the registration and disclosure requirements.  It also found that the organization had acted as “electioneering communications,” and as a result had violated the identification requirements.

The trial court concluded, “[i]t would require the cheerful credulity of a very young child” to conclude that the ads, prominently featuring Dubie’s name and photo, aired just prior to the gubernatorial election, were not aired with the intent to advocate against Dubie’s candidacy for Governor.  Following the summary judgment decision, the State sought a $100,000 civil penalty which the court declined to impose, settling on $10,000.

On appeal, Appellant argued it had not used the “magic words” in their ads to take them from issue advocacy to magical PAC-land.  Thus, this case largely turned on the scope and continuing vitality of the “magic words,” which Appellant argued are required by federal case law to trigger PAC status.  The SCOTUS in a footnote in one of the foundational campaign finance cases, Buckley v. Valeo, had given examples of words or phrases that would qualify as “express campaign advocacy” (as compared to mere “issue advocacy”) in order to avoid concerns of vagueness or overbreadth.  These examples are known as Buckley’s “magic words.”

In large part, the SCOV agrees that Buckley and its reasoning controls here, and the SCOV’s decision generally follows the outline of Buckley, but the SCOV departs from the strict language of Buckley when it comes to the issue of “magic words.”  At this point, the SCOV notes that the reasoning in this portion of Buckley has continued to evolve, and more recent SCOTUS decisions demonstrate that magic words are not necessary if the advertisement is “influencing an election.”

If an ad is attempting to influence the outcome of an election, then registration, disclosure and the identification requirements, like those contained in the relevant Vermont statutes, are reasonable measures and are neither vague nor overbroad.  As you would expect, the SCOV then goes on to hold that in light of the organization’s efforts to influence the 2010 gubernatorial election, the applicable Vermont statutes are neither vague nor overbroad, either facially or as applied to the organization.  The trial court’s conclusions are affirmed, and the organization remains on the hook. 

This leaves us with the State’s cross-appealed seeking to have the trial court’s $10,000 fine increased. In light of the finding that the ads constituted “electioneering communications,” the SCOV remands this issue to the trial court to consider in light of the violations of the identification requirement. Organization will have to hold onto its funds because it is only going to get more costly from here.

Like any good alchemical stew, today’s case abounds with incantations and enchantments, but in the end, the SCOV was able to see through the spells chanted for bogus “issue organization” status and the mighty powerful Hoodoo of summary judgment is affirmed.  


Bibbidi-bobbidi-boo!

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