United States District Court, D. Vermont
DEAN CORREN, the VERMONT PROGRESSIVE PARTY, STEVEN HINGTGEN, RICHARD KEMP, and MARJORIE POWER, Plaintiffs, DAVID ZUCKERMAN, Intervenor/Plaintiff,
WILLIAM SORRELL, Vermont Attorney General in his official capacity, and JAMES CONDOS, Vermont Secretary of State in his official capacity, Defendants.
OPINION AND ORDER
WILLIAM K. SESSIONS III DISTRICT COURT JUDGE.
Plaintiffs are challenging the constitutionality of Vermont’s campaign finance law as it pertains to publicly-financed candidates. In a related case, the Vermont Attorney General’s office has brought an enforcement action against Plaintiff Dean Corren alleging campaign finance law violations. That case is ongoing in state court. Currently pending in this Court are Plaintiffs’ motion for preliminary injunctive relief and Defendants’ motion to dismiss. For the reasons set forth below, the motion for preliminary injunctive relief is denied, the motion to dismiss is granted, and the case is dismissed without prejudice to refiling.
Briefly stated, the Court finds no constitutional infirmity with the Vermont statute so long as it is construed as allowing supporters to associate and communicate with publicly-funded candidates consistent with the intent of the Vermont Legislature. If the state courts construe the law in a way that significantly restricts those communications, Plaintiffs may re-file their objections so that this Court can revisit the constitutionality of the entire public financing scheme.
I. Public Financing In Vermont
Since 1997, Vermont has offered political candidates the option of financing their campaigns with public funds. To be eligible for such funding, candidates must first raise a certain amount in qualifying contributions. If they are able to meet the qualifying threshold, candidates may then receive public funds in amounts fixed by the Legislature.
A publicly-funded candidate must abide by certain restrictions. Generally speaking, those restrictions fall into four categories: (1) contribution limits; (2) spending limits; (3) related expenditures; and (4) the time period during which candidates may raise qualifying funds. All of these provisions are anchored in a legitimate governmental concern. Because public financing is premised upon the desire to avoid the potentially-corrupting influence of private donations, limits on private contributions are a centerpiece of any such legislation. Spending beyond the funding grant is also a fundamental restriction. The related expenditures limitation forbids certain coordinated efforts between candidates and supporters that might undermine the contribution and spending limitations. Finally, the qualifying period requires candidates to wait until a certain date (in the 2016 election year, that date was February 15) to announce their intention to use public funds and begin soliciting qualifying contributions. Defendants contend that this restriction is necessary to ensure that only viable candidates receive public money.
A broad reading of the public financing law, including the limited restrictions, reveals the Legislature’s effort to protect the rights of supporters to speak and associate freely with publicly-funded candidates. For example, while publicly-funded candidates are not allowed to accept private contributions beyond the initial qualifying funds, see 17 V.S.A. § 2983(b)(1), the term “contribution” has numerous exemptions. Specifically, the statute exempts volunteer activities; the use of political party offices, telephones, computers and similar equipment; access to party voter lists and voter identification information; campaign training sessions if three or more candidates are present; political party payment for an event attended by three or more candidates; and party efforts to encourage voters to register and/or vote so long as a specific candidate’s name is not mentioned. 17 V.S.A. § 2901(4). The legislative findings highlight the constitutional significance of these exemptions:
Exempting certain activities of political parties from the definition of what constitutes a contribution is important so as not to overly burden collective political activity. Those activities, such as using the assistance of volunteers, preparing candidate listings, and hosting certain campaign events, are part of a party’s traditional role in assisting candidates to run for office. Moreover, these exemptions help protect the right to associate in a political party.
Vt. Act 90, S.82, Sec. 1, ¶ 10.
A fundamental issue in this case is the relationship between the exemptions in Section 2901(4) and the scope of the term “contribution” elsewhere in the public financing statute. For example, an expenditure by a third party on behalf of a candidate is considered a “contribution” if the expenditure is “intentionally facilitated by, solicited by or approved by” the candidate or the candidate’s campaign committee. 17 V.S.A. §§ 2944(a), (b). If a publicly-funded candidate were to solicit or accept such a “contribution, ” that might be considered a violation of the candidate’s pledge to accept only qualifying and public funds. See 17 V.S.A. § 2983(b)(1). However, if the exemptions in Section 2901(4) apply to Sections 2944 and 2983(b)(1), there would be no “contribution” and thus no violation.
Defendants’ briefing concedes that the exemptions in Section 2901(4) apply to “in-kind” contributions. See ECF No. 43-1 at 27. Plaintiffs maintain that the Attorney General’s enforcement actions are inconsistent with this concession. See ECF No. 48 at 10-11. Plaintiff Dean Corren testified that he was told by the Attorney General’s office that he had “no right to communicate with the Democratic Party whatsoever, ” and that as a result he did not “dare pick up the phone” to speak with party officials. ECF No. 55 at 18-20. Other hearing testimony revealed that campaign workers were similarly wary of communicating with supporters for fear of committing a statutory violation. Accordingly, Plaintiffs seek a ruling as to the extent of the Section 2901(4) exemptions. ECF No. 48 at 10-11.
II. The Enforcement Action Against Dean Corren
In 2014, Dean Corren ran for office as a publicly-financed candidate for Lieutenant Governor. Corren was eligible to receive public financing if he first raised at least $17, 500 from not fewer than 750 individuals, with each contribution not to exceed $50. 17 V.S.A. § 2984(a)(2). In raising this initial sum, Corren was allowed spend up to $2, 000 of his own money or private contributions as seed money, and qualifying contributions thereafter. Id. § 2983(a). The public financing grants then offered up to $32, 500 for the primary election period and $150, 000 during the general election period, amounting to a potential total of $200, 000 in campaign funds. Id. § 2985(b)(2). Corren qualified for public financing for both the primary and the general elections, and received over $180, 000 in campaign finance grants.
While the Corren campaign was under way, the Vermont Attorney General’s office received a complaint that the campaign had accepted an unlawful, in-kind contribution in the form of an October 24, 2014 email sent by the Vermont Democratic Party (“VDP”). The email was sent by Dottie Deans, chair of the VDP, and was entitled “How you can help me help Dean Corren.” A Corren staff member had sent the VDP proposed wording for the email, and portions of that wording were used in the final communication.
Both the VDP and the Corren campaign were aware that the email had value, and made efforts, including consultations with counsel, to remain in compliance with the public financing statute. The Corren campaign offered two suggestions for compliance: (1) pay the VDP for the value of the email, or (2) avoid the related expenditure presumption by mentioning more than six candidates. ECF No. 2-2 at 26. The VDP informed the Corren campaign that it would pursue the latter option.
The final version of the email stated in relevant part:
Many of you know I’m a strong supporter of Dean Corren for Lt. Governor but maybe you don’t know why. Dean has the skills and experience to support our Vermont Democratic Party Platform and overcome some of the greatest challenges we face.
I believe Dean would make an excellent Lt. Governor, but to make this happen we all need to pitch in. Here are a few ways you can help.
1. Come to a Rally! This weekend we are joining Senator Bernie Sanders, Governor Peter Shumlin, Dean and local candidates at four [Get Out The Vote] rallies across the state. [The email went on to list four rallies in Bristol, Proctor, Hinesburg, and St. Albans.]
3. Tell Your Neighbors! We are working every day to talk to voters in Vermont into getting to the polls on Election Day. Sign up to volunteer for a shift here. For other ways to help, please email firstname.lastname@example.org I appreciate all the work you are doing on behalf of our candidates around the state and look forward to celebrating great victories with you on the 4th. Now get out and vote for Congressman Peter Welch, Governor Peter Shumlin, Dean Corren for Lieutenant Governor, and the rest of our amazing Democratic ticket!
ECF No. 1-1.
On October 30, 2014, the Attorney General’s office notified the Corren campaign and the VDP that the October 24, 2014 email constituted an uncompensated contribution in violation of Vermont campaign finance law. Specifically, the Attorney General contended that the email was a related campaign expenditure because it was intentionally solicited and facilitated by the campaign. ECF No. 2-2 at 11. The alleged value of the contribution - representing the value of the email list - was $255.
After conducting an investigation, the Attorney General’s office provided Corren with a draft of a civil enforcement pleading it was prepared to file in state court. The state court action would seek $20, 000 in fines and the return of the approximately $52, 000 in public funds that the Corren campaign had in its accounts as of the date of the email. Corren disputed the alleged violation, and alternatively offered to pay the $255 value of the email list. That offer was reportedly rejected. As of ...