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State v. Green Mountain Future

Supreme Court of Vermont

September 27, 2013

State of Vermont
Green Mountain Future

Page 982

[Copyrighted Material Omitted]

Page 983

On Appeal from Superior Court, Washington Unit, Civil Division. Geoffrey W. Crawford, J.

Affirmed, but remanded to the trial court for consideration of a penalty for the violations of the identification requirement.

William H. Sorrell, Attorney General, and Eve Jacobs-Carnahan and Megan J. Shafritz, Assistant Attorneys General, Montpelier, for Plaintiff-Appellee/Cross-Appellant.

Joshua R. Diamond of Diamond & Robinson, P.C., Montpelier, and James Lamb of Sandler, Reiff, Young & Lamb, Washington, DC, for Defendant-Appellant/Cross-Appellee.

Present: Reiber, C.J., Dooley, Skoglund and Burgess, JJ., and Cohen, Supr. J., Specially Assigned


Page 984

Dooley, J.

[¶ 1] Appellant Green Mountain Future (GMF) appeals the summary judgment decision of the trial court finding that it is a political action committee (PAC) and violated a number of provisions of the Vermont campaign finance laws. GMF maintains that the trial court erred in not applying a narrowing construction created by the U.S. Supreme Court in the 1976 case of Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976), to the definition of a PAC under Vermont campaign finance laws, and that without that construction the registration and disclosure laws are unconstitutional under the overbreadth doctrine of the First Amendment and the vagueness doctrine of the Fourteenth Amendment. The State cross-appeals the $10,000 civil penalty assigned by the trial court, asserting that that court abused its discretion by misapplying certain factors and imposing a penalty for only one of GMF's violations. We affirm the trial court's decision on summary judgment and the civil penalty, except that we remand for reconsideration of the penalty for the violation of the identification requirement.

[¶ 2] This case largely turns on the scope and continuing vitality of the magic words that GMF argues are required by Buckley v. Valeo . See infra, 25-27. GMF argues that its advertisements were purely issue advocacy and did not seek to affect the outcome of an election, in this case for Governor of Vermont. The State argues that GMF's advertisements were transparently employed to defeat the candidacy of Brian Dubie for Governor indeed, they could have no other purpose although they did not state so explicitly. We hold that the magic words are not required to make the applicable campaign finance statute constitutional.

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[¶ 3] GMF is an issue advocacy organization registered with the Internal Revenue Service pursuant to 26 U.S.C. 527 with an address in Barre, Vermont. Its stated purpose is 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 2010, the month that it was established, it reported contributions of $533,955 and expenditures of $429,186. The contributions were almost exclusively from the Democratic Governors Association, and the expenditures went mainly towards two television advertisements that were aired a total of over 4000 times in September and October 2010. Both advertisements focused on the Republican candidate for Governor, and then-Lieutenant Governor, Brian Dubie and his support for the continued operation of the Vermont Yankee Nuclear Power Station. They included his photograph and concluded with the statements, Vermont Yankee open another twenty years would be a disaster. Tell Brian Dubie he's wrong about Vermont Yankee, and Want Vermont Yankee open another twenty years? Tell Brian Dubie no. They were strongly negative in tone, but did not mention the upcoming election for Governor nor Brian Dubie's candidacy and did not urge voters to vote for a particular candidate in that election.

[¶ 4] 17 V.S.A. 2801(4) defines a political committee or political action committee (PAC) as an:

entity 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,[1] in any election or affecting the outcome of an election.[2]

[¶ 5] If an organization is a PAC under this definition, it is then subject to 17 V.S.A. 2831 (the registration requirement), which requires any PAC or party spending more than $500 to register with the Secretary of State within 10 days of having reached the $500 threshold for expenditures, and to 17 V.S.A. 2811 (the disclosure requirement), which requires it to file campaign finance reports on specified dates.

[¶ 6] The other statutory provision in question is 17 V.S.A. 2892 (the identification requirement). This provision is not limited to any particular type of group, and provides:

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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.

[¶ 7] Electioneering communication is defined at 2891 as:

[A]ny 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.

[¶ 8] The State filed an action in the trial court requesting a declaration that GMF was in violation of Vermont election laws for: (1) failing to register with the state as a PAC in violation of the registration requirement, 17 V.S.A. 2831; (2) failing to file reports in violation of the disclosure requirement for PACs, id. 2811; and (3) failing to include its address in the two television advertisements in violation of the identification requirement, id. 2892. The State claimed that GMF was subject to the disclosure and registration requirements because it had received and expended more than $500 in the calendar year for the purpose of supporting or opposing one or more candidates, or influencing an election.

[¶ 9] GMF responded that, because its advertisements were pure issue advocacy ads related to nuclear policy, they constituted neither expenditures that triggered PAC status and the registration and disclosure requirements, nor electioneering communications that triggered the identification requirement. GMF further argued that putting its website address on the advertisements satisfied the identification requirement. It also counterclaimed, under 42 U.S.C. 1983, making two constitutional arguments: (1) that the First Amendment prohibits state regulation of issue advocacy, and (2) that the registration requirement, its accompanying disclosure requirement, and the disclaimer requirement are unconstitutional because they are vague and overly broad, therefore violating 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.

[¶ 10] The trial court rejected GMF's constitutional arguments and found that GMF violated the registration, disclosure, and identification requirements. The court specifically found that GMF's advertisements were electioneering communications because [t]hey refer to a clearly identified candidate for office and oppose [his] fitness for office by raising questions about his judgment and policy choices. In so doing, the court adopted a narrowing construction of the PAC definition in order to avoid both vagueness and overbreadth concerns for the registration and disclosure requirements, finding that PAC status is triggered with respect to a candidate election by an expenditure for the purpose of supporting or opposing one or more candidates.

[¶ 11] In reaching its decision, the trial court concluded [i]t 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,

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had neither the intention nor the effect of advocating against his election. Thus, it drew the obvious inference from the undisputed facts that the advertisements, objectively viewed, were created and broadcast for the purpose of opposing a candidate. It held that GMF violated the statutes imposing the registration, disclosure and identification requirements. GMF disputes these conclusions only by arguing that the statutes must be narrowed to be constitutional and, as narrowed, that the statutes do not extend to GMF's conduct.

[¶ 12] Following the summary judgment decision, the State sought a $100,000 civil penalty from GMF. The trial court declined to impose such a large penalty, but instead levied on GMF a civil penalty of $10,000 for the violation of the registration requirement, finding that to be the most critical violation of the campaign finance laws. It declined to give a separate penalty for the violation of the disclosure requirement. Its decision on the civil penalty does not reference the violation of the identification requirement, although it does seem perhaps to be referring to that violation when it states: The potential number of individual violations is astronomical since the television advertisements were aired thousands of times.

[¶ 13] On appeal, GMF argues that the trial court erred in its construction of the statutory definition of a PAC when it did not employ the express advocacy construction of the federal statute from Buckley in order to avoid vagueness and overbreadth, but instead created its own narrowing construction of the definition. Under the Buckley construction, GMF argues, its advertisements did not trigger PAC status because they did not include any words expressly advocating any electoral action, or in fact include any references to an election, voting, campaigns, or identify that any person in the communications was a candidate for elected office, and GMF therefore did not violate either the registration or the disclosure requirement. If the limiting construction of Buckley is not employed, GMF argues, [a]ny broader interpretation would be rendered unconstitutional for vagueness and overbreadth. GMF does not appeal the finding of the violation of the identification requirement, presumably because it was not given a penalty for that finding.[3] For its part, the State appeals the $10,000 civil penalty, arguing that that court abused its discretion by misapplying certain factors and giving a penalty for only one of the violations. Further, it argues that the trial court abused its discretion in failing to consider the violation of the identification requirement in assigning the penalty.

[¶ 14] This case comes to us from a summary judgment order. We review a summary judgment order using the same standard as the trial court. Richart v. Jackson, 171 Vt. 94, 97, 758 A.2d 319, 321 (2000). Summary judgment is appropriate when, taking all allegations made by the nonmoving party as true, there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. V.R.C.P. 56(a); Richart, 171 Vt. at 97, 758 A.2d at 321.

[¶ 15] We review the trial court's conclusions of law, particularly its constitutional decisions, de novo. See Ctr. for Individual Freedom v. Madigan, 697 ...

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