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!
Sounds messy
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