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Landell v. Vermont Public Research, #00-9159
WINTER, Circuit Judge, dissenting,
I respectfully dissent as to the constitutionality of two provisions of Act 64. See 1997 Vermont Campaign Finance Reform Act (codified as Vt. Stat. Ann. tit. 17, §§ 2801-2883) ("Act 64"). Those provisions are Act 64's limits on expenditures by candidates, including related expenditures, and its restrictions on fundraising by state, county, and local committees of a political party. Id. §§ 2801(5), 2805a. Otherwise, based on Supreme Court precedent, I concur in the result reached by my colleagues. In view of the length of this dissent, I begin with a table of contents.
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CONTENTS
I. INTRODUCTION...............................................3 II. APPLICABLE CONSTITUTIONAL PRINCIPLES.......................4 III. THE CONSTITUTIONALITY OF EXPENDITURE LIMITATIONS AND RESTRICTIONS ON PARTY AFFILIATE FUNDRAISING...............................11 a) The Requisite Level of Scrutiny........................11 b) Act 64's Expenditure and Contribution Limits...........14 c) Act 64's Burden on Protected Speech....................29
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I.INTRODUCTION
Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam), held that government may not limit campaign expenditures by candidates for electoral office. Id. at 45, 54, 57. Act 64 limits such expenditures notwithstanding Buckley. Indeed, the proponents of Act 64 never doubted its unconstitutionality under Buckley and enacted it for the explicit purpose of creating a vehicle for litigation to overturn Buckley. See infra note 1 and accompanying text. Act 64's limits on expenditures by candidates violate the First Amendment because they limit political speech, including editorializing speech by the press, for no permissible purpose, and entrust those who enforce the law with unfettered, and unconstitutional, discretion to determine what acts of political advocacy are permitted and prohibited. Moreover, the treatment of a contribution to a local political party affiliate -- be it state, county, or local -- as a contribution to all affiliates violates both freedom of speech and freedom of association.
Act 64 suppresses ordinary political activity at every level of the electoral process. It may be a popular law but only because its proponents systematically divert attention from the law's actual provisions to the nobility of their goal -- here the transfer of political power from *special interests* to *regular citizens.*
As Justice Brandeis once noted, "The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding." Olmstead v. United States, 277 U.S. 438, 479 (1928) (Brandeis, J., dissenting). And Justice Black has reminded us that "[h]istory indicates that urges to do good have led to the burning of books and even to the burning of 'witches.'" Beauharnais v. Illinois, 343 U.S. 250, 274 (1952) (Black, J., dissenting). Act 64, which has its greatest impact in silencing those ordinary citizens whose active participation in politics is through organized groups, provides us with a modern reminder of the wisdom of those two statements.
II. APPLICABLE CONSTITUTIONAL PRINCIPLES
Neither Act 64's limits on expenditures nor its restrictions on independent fundraising by state or local party committees involve new issues of constitutional law.
Political speech without an audience is not worth the effort. Political speakers must go to where voters are or speak through a medium that voters watch or hear. Without resources of communication, no speech is effective. Without money, resources are not obtainable. Cars use gas. Gas costs money. A candidate who may not under a law even drive the family car to a town green to make a speech is as effectively barred from speaking as he would be if the law flatly prohibited the speech. As the Supreme Court has stated:
A restriction on the amount of money a person or group can spend on political communication during a campaign necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached. This is because virtually every means of communicating ideas in today's mass society requires the expenditure of money. The distribution of the humblest handbill or leaflet entails printing, paper, and circulation costs. Speeches and rallies generally necessitate hiring a hall and publicizing the event.
Buckley, 424 U.S. at 19.
Act 64's limits on campaign expenditures directly inhibit the most ordinary activities of democratic politics. If a citizen uses his or her residence as a place at which a candidate and the candidate's supporters sometimes meet to plan campaign efforts, buys stamps for invitations to the gatherings, and provides snacks and soft drinks for those who attend, then the value of the use of the rooms and the items purchased must fit within Act 64's highly restrictive limitations. See Office of the Secretary of State, 2001 Guide to Vermont's Campaign Finance Law, available at http://vermont-elections.org/elections1/ 2001cfguide.html ("2001 Guide"); Memorandum from Secretary of State Deborah L. Markowitz re: Review of Practical Policy and Legal Issues of Vermont's Campaign Finance Law (Mar. 11, 1999), available at http://vermont-elections.org/elections1/ 1999GAMemoCF.html ("1999 Memorandum"). The value of the mileage driven by the candidate and other supporters to the meetings must also be calculated and fit within Act 64's limits. See 2001 Guide, supra. If the same candidate successfully "solicits" an editorial endorsement from a newspaper, the value of that endorsement falls within the definitions of *contribution* and *related expenditure" regulated and limited by Act 64. See Vt. Stat. Ann. tit. 17, §§ 2801(2), 2809(c); 2001 Guide, supra. These restrictions on candidates and their supporters are rendered even harsher by Act 64's severe, albeit constitutional, limitations on what political parties can do in election campaigns.
The activities limited by Act 64 are the ordinary stuff of democracy that constitutes the core of the conduct protected by the First Amendment. There is "practically universal agreement that a major purpose of [the First] Amendment was to protect" such speech. Mills v. Alabama, 384 U.S. 214, 218 (1966), quoted in McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 346 (1995). Indeed, the First Amendment "has its fullest and most urgent application precisely to the conduct of campaigns for political office." Buckley, 424 U.S. at 15 (quoting Monitor Patriot Co. v. Roy, 401 U.S. 265, 272 (1971)).
In applying these principles, the Supreme Court has held that only the prevention of "corruption or the appearance of corruption" constitutes a sufficiently compelling interest to limit contributions to candidates. See Buckley, 424 U.S. at 25-28 (holding that limiting the actuality and appearance of corruption is a "constitutionally sufficient justification" for a contribution limitation, but dismissing other proffered justifications for the limitation). It has also held, however, that neither the anti-corruption rationale, the interest in equalizing the financial resources of candidates, nor the increase in money spent on political campaigns justifies the limiting of amounts that candidates for office may spend to promote their candidacy. Id. at 45, 54, 57. Indeed, the Court has stated that
[t]he First Amendment denies government the power to determine that spending to promote one's political views is wasteful, excessive, or unwise. In the free society ordained by our Constitution it is not the government but the people -- individually as citizens and candidates and collectively as associations and political committees -- who must retain control over the quantity and range of debate on public issues in a political campaign.
Buckley, 424 U.S. at 57.
Since Buckley, the Court has adhered to the distinction between the regulation of contributions and the regulation of expenditures. See Federal Election Comm'n v. Colorado Republican Federal Campaign Comm., 533 U.S. 431, 440-41 (2001) ("Colorado II"). In Colorado II, the Court stated that "ever since we first reviewed the 1971 Act, we have understood that limits on political expenditures deserve closer scrutiny than restrictions on political contributions," because "[r]estraints on expenditures generally curb more expressive and associational activity," and "limits on contributions are more clearly justified by a link to political corruption." Id. The Court went on to state that "[g]iven these differences, we have routinely struck down limitations on independent expenditures by candidates, other individuals, and groups, while repeatedly upholding contribution limits." Id. at 441-42 (citations and footnotes omitted) (emphasis in original). One would think that the unqualified statements of the Supreme Court regarding the unconstitutionally of expenditure limits might be the end of the matter at this level of the court system, particularly since the sponsors of Act 64 have made no secret of their intention to enact Act 64 in order to provoke a test case to overrule Buckley with regard to expenditure limits. See Memorandum from Secretary of State Deborah L. Markowitz re: Review of Practical Policy and Legal Issues of Vermont's Campaign Finance Law (Jan. 9, 2001), available at http://vermont-elections.org/elections1/ 2001GAMemoCF.html ("2001 Memorandum"); see also Hearing on H. 28 Before the Vt. House Comm. on Local Gov't, 64th Biennial Sess. (1997) (statement of Anthony Pollina); Hearing on H. 28 Before the Vt. Senate Comm. on Gov't Operations, 64th Biennial Sess. (1997) (statement of Sen. William Doyle); Vt. House Comm. of Conf., Report on Campaign Finance, H. 28, 64th Biennial Sess. (1997).1 However, the views of my colleagues require that I describe in some detail why Act 64 is unconstitutional in the particular respects noted above and even under the new constitutional test that they adopt.
There is another body of First Amendment jurisprudence that is of relevance here: Any regulation of protected speech must embody valid criteria sufficiently precise to ensure that officials apply those criteria. See Thomas v. Chicago Park Dist., 122 S. Ct. 775, 780 (2002) (stating that the Supreme Court has "required that a time, place, and manner regulation contain adequate standards to guide the official's decision and render it subject to effective judicial review"); Forsyth County v. The Nationalist Movement, 505 U.S. 123, 131 (1992) ("'[A] law subjecting the exercise of First Amendment freedoms to the prior restraint of a license' must contain 'narrow, objective, and definite standards to guide the licensing authority.'" (quoting Shuttlesworth v. City of Birmingham, 394 U.S. 147, 150-51 (1969))). Otherwise, the officials who administer the law will have the discretion to fashion and apply their own criteria without restraint. See Thomas, 122 S. Ct. at 780 ("Where the licensing official enjoys unduly broad discretion in determining whether to grant or deny a permit, there is a risk that he will favor or disfavor speech based on its content."); Forsyth, 505 U.S. at 131 ("If the permit scheme 'involves appraisal of facts, the exercise of judgment, and the formation of an opinion' by the licensing authority, 'the danger of censorship and of abridgment of our precious First Amendment freedoms is too great' to be permitted." (citations omitted)).
In that regard, Act 64 is more a theory than a body of legal rules. What it actually means in practice has been, in a literal multitude of critical respects, simply left to future executive or judicial rulings. Act 64 bristles with interpretive issues -- the meaning of *anything of value,* *candidate,* *for the purpose of influencing an election,* *primarily benefits six or fewer candidates,* *single source,* *affirmative action to become a candidate,* *services by individuals volunteering their time,* and so on -- and with valuation questions -- of mileage, use of a room, office, computer, phone, professional services, etc. -- and leaves all of these issues to those who must administer and enforce the statute. See Vt. Stat. Ann. tit. 17, § 2801; 2001 Guide, supra.
Moreover, the exercise of freedom of association requires that citizens be allowed freely to form political organizations at various levels of government that are related to each other as affiliates of the same political party while still retaining much local autonomy. See Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358 (1997) (stating that "political parties' government, structure, and activities enjoy constitutional protection" and noting that a political party has "'discretion in how to organize itself, conduct its affairs, and select its leaders,'" (citing Eu v. San Francisco County Democratic Cent. Comm., 489 U.S. 214, 230 (1989)); see also Buckley, 424 U.S. at 15 (recognizing the right "'to associate with the political party of one's choice'" and noting that "'[e]ffective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association'" (internal citations omitted)). Act 64's treatment of the state, county, and local affiliates of a political party as a single aggregated unit for purposes of fundraising and contribution limits, see Vt. Stat. Ann. tit. 17, § 2801(5), forces state-wide coordination of the funding of local, county, and state-wide party activities and thereby violates both freedom of speech and freedom of association. This lumping of groups that have sound reasons for an independent existence, albeit while being loosely related to each other, portends to destroy local organization and citizen participation in American democracy. And it does so for no articulated reason.
III. THE CONSTITUTIONALITY OF EXPENDITURE LIMITATIONS AND RESTRICTIONS ON PARTY AFFILIATE FUNDRAISING
a) The Requisite Level of Scrutiny
As noted, it is standard First Amendment jurisprudence that governmental restraints on protected speech must be subjected to exacting scrutiny to survive a constitutional challenge. See Buckley, 424 U.S. at 16, 44-45 (referring to the "exacting scrutiny required by the First Amendment," and applying exacting scrutiny to "limitations on core First Amendment rights of political expression"); Smith v. California, 361 U.S. 147, 151 (1959) (applying "stricter standards" to a statute that has "a potentially inhibiting effect on speech," and noting that "a man may the less be required to act at his peril here, because the free dissemination of ideas may be the loser" (citing Winters v. New York, 333 U.S. 507, 509-10, 517-18 (1948))); see also McIntyre, 514 U.S. at 347 (applying exacting scrutiny to invalidate an Ohio law that prohibited the distribution of anonymous campaign literature); Meyer v. Grant, 486 U.S. 414, 420 (1988) (holding that a statute prohibiting use of paid petition circulators burdens core political speech and is therefore subject to exacting scrutiny); Lerman v. Bd. of Elections, 232 F.3d 135, 146 (2d Cir. 2000) (applying "exacting scrutiny" to restriction of "core political speech" in overturning local residency requirement for petition witnesses).
The most exacting scrutiny must be given to legislation that expressly seeks to reallocate political power -- in view of Act 64's proponents, from "special interests" to "regular people" -- by limiting the political activity of candidates for office and their supporters. See Buckley, 424 U.S. at 14-15 (calling political campaigns the "fullest and most urgent application" of the First Amendment guarantee, and invoking the "'profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open'" (quoting New York Times v. Sullivan, 376 U.S. 254, 270 (1964))).
As Justices Brandeis and Black have reminded us, the high-mindedness of a law's proponents is no guarantee that it comports with principles of freedom of expression. This is particularly true with regard to legislation that was examined in the legislative process more for the nobility of its stated purpose than for what it said. Since Act 64's passage, surprise at its actual provisions and actual effects has been expressed by the law's proponents.2 Notably, one vigorous supporter, Anthony Pollina, who was a lobbyist seeking Act 64's passage and has even been described as its author, see Vermont Reformer Says Law He Authored is Unconstitutional, Political Finance, The Newsletter, March, 2002, has since sought to run for office and brought a lawsuit claiming that Act 64 violates the First Amendment. See Ross Sneyd, Progressives Sue to Ensure Public Financing for Pollina, Associated Press, Mar. 12, 2002.
Moreover, high-mindedness can, for some, also be a useful facade. When campaign finance legislation is considered by those in power, there is both motive and opportunity to craft rules that will restrain the political activity of opponents. My colleagues caution that the self-interest of incumbents should not cause us to presume that such legislation is unconstitutional. I agree but also note that our experience in a similar area suggests that great caution is in order. Legislatures can directly affect the outcome of elections through two kinds of legislation: reapportionment and campaign finance regulation. Our experience with reapportionment is that, over time, the self-interest of incumbents has become the sole guiding star. Campaign finance legislation presents a similar opportunity to incumbents, and a major factual premise of Act 64 is that incumbents value reelection over their duties to constituents. Indeed, whenever Congress takes up legislation involving campaign finance, the press now openly discusses how various proposals will affect particular political parties and candidates. See, e.g., Ruth Marcus & Dan Balz, Democrats Have Fresh Doubts on "Soft Money" Ban; Some Fear GOP Would Gain Edge in Campaign Finances, Washington Post, Mar. 5, 2001, at A1; John Mintz, McCain's "Soft Money" Pledge Alarms GOP; Republican Leaders Say Curbs Would Hurt Party's Election Chances, Give Fund-Raising Edge to Democrats, Labor Unions, Washington Post, Feb. 22, 2000, at A6. The assumption that these possible effects never enter the mind of the party members and candidates who enact such legislation might be questioned by even the least cynical observer. Presumption or no, truly searching scrutiny of campaign finance legislation is essential.
I respectfully submit that my colleagues have not given this legislation careful, much less exacting, scrutiny. Their opinion describes the provisions of Act 64 in only cursory fashion. It accepts the theory and factual assumptions proffered by the law's supporters at face value in a show of deference exceeding even that accorded decisions of an administrative body. And it essentially ignores the holding of Buckley.
Even if Buckley was not there, First Amendment jurisprudence does not allow laws that burden and prohibit political advocacy to be justified by the proffer of a theory based on spoken and unspoken factual assumptions without the most exacting judicial scrutiny of that theory, those factual assumptions, and the actual provisions of the law as enacted. Such scrutiny requires a critical examination of the details of the law passed, the degree of burden it imposes on protected speech, and the interests asserted as a justification. Accordingly, I turn to the details of the law.
b) Act 64's Expenditure and Contribution Limits
Beginning with an overview, Act 64 limits the amount of resources -- money and things of value -- that may be used by candidates on campaign activities and that may be obtained by candidates from individual donors or political committees. See Vt. Stat. Ann. tit. 17, §§ 2805, 2805a. It therefore contains limits on direct expenditures of money or use of things of value by candidates and direct contributions of money or things of value to campaigns. See id. These limits would not necessarily reach activities that consume resources purchased and used by others to support a candidate's campaign. To eliminate any uncertainty, Act 64 styles these activities *related expenditures* and treats them both as candidate expenditures and as contributions to a candidate subject to the statutory limits on those expenditures and contributions. See id. §§ 2809(a), (b). Act 64 also requires that the limits on contributions to, and campaign expenditures by, state, county, and local affiliates be determined by aggregating, that is, by treating them all as a single committee. See id. §§ 2801(5), 2805(a), 2809(d).3
Act 64 provides a public financing option for candidates for Governor and Lieutenant Governor. See id. §§ 2851-2856. Eligibility for public financing turns in part on Act 64's definitions of contributions and expenditures, and, therefore, of related expenditures. Were a candidate to raise or expend more than $500 -- or have supporters, including a political party, make related expenditures in excess of that amount -- before February 15 of the election year, the candidate would not be eligible for public financing. See id. § 2853(a).
Such a regulatory effort of course must provide some definition of the conduct regulated and the substance of what is prohibited and what is permitted. Where limits on expenditures and contributions are imposed by dollar value, a time frame must be selected. The statutory scheme must also include an enforcement scheme, a delicate matter when electoral speech by candidates and their supporters is regulated by government itself in minute, day-by-day detail, and a multitude of statutory ambiguities and daily problems of interpretation and valuation abound. Scrutiny of the details of such regulation is necessary to inform the constitutional inquiry regarding the degree of impact on protected speech and conduct, the requisite nexus between the regulation and constitutionally permissible goals, and the accuracy, reliability, and likely adherence to those goals of the designated enforcement mechanisms.
As noted, establishing a basic legal framework for regulating political campaigns first requires selection of a time frame(s) for the provision of public financing and for totaling candidate expenditures, contributions, and related expenditures in order to enforce limits on their size. Act 64 is schizophrenic in that regard. For purposes of public financing, it establishes separate time periods and separate funding for primary and general elections in recognition of the fact that some candidates need funding to wage both a primary and general election campaign while others need funding only in the general election. See id. § 2855(a).
For purposes of limiting contributions and expenditures, however, Act 64 imposes a so-called two-year cycle approach. See id. §§ 2805(a), 2805a(a); see also 2001 Guide, supra. Under that approach, expenditures by candidates, contributions, and related expenditures are totaled over a two- year period for purposes of enforcing the statutory limitations. The effect of the two-year cycle is not inconsequential. Vermont, like most American states, provides both for primaries and for subsequent general elections. See Vt. Stat. Ann. tit. 17, §§ 2103(15),(25), 2351. Because the two-year cycle lumps these elections together, contribution and expenditure limits, including related expenditures, are imposed on the total raised and spent by individual candidates in both electoral periods. In other words, Act 64 limits a candidate who must wage a serious primary fight to the same amount of financing as a general election opponent who did not face a serious primary contest.
The two-year cycle introduces another complexity -- and creates much room for anti-democratic manipulation -- because party primaries in Vermont are not restricted to voters registered in the particular party but are open to all voters, including those registered in other parties. See id. § 2363; see also Ian Urbina, Leveling Politics in the Green Mountain State, The American Prospect, Sept. 25, 2000, at 41 (discussing Vermont's cross-over voting in primaries); Vermont's Senate Race, The Common Man, The Economist, Sept. 5, 1998, at 25. The amount that a candidate must spend in a primary, therefore, may be substantially affected by voters who are seeking to disadvantage the candidate in the general election.
Turning to Act 64's definitions, candidate expenditures are defined to include *payments,* *distributions,* and *disbursements* *of money or anything of value* *for the purpose of influencing an election." Vt. Stat. Ann. tit. 17, § 2801(3).4 The breadth of this language is indisputable. Given its ordinary meaning, it includes the value of the use of phones, computers, offices, rooms in residences or elsewhere, paper, pencils, autos, etc. See 2001 Guide, supra; 1999 Memorandum, supra. For example, according to Vermont's Secretary of State, a candidate's use of an auto is an expenditure. See 2001 Memorandum, supra. Candidates therefore may not drive their personal vehicles for campaign purposes without recording every mile driven and treating the costs of that driving as a campaign expenditure. See id. Vermont's Secretary of State has suggested that 31* per mile is presently an accurate measure of expense for this purpose. See id. These expenditure limits also apply to candidates who use personal funds exclusively to fund their campaigns. See Vt. Stat. Ann. tit. 17, § 2805a(a).
Two terms are critical to determining what activities are "expenditures" subject to the limits: "for the purpose of influencing an election," see id. § 2801(3), and "candidate," see id. § 2801(1). The breadth of the former language clearly is such as to be in substantial part hopelessly ambiguous. At one end of an interpretive spectrum, "for the purpose of influencing an election" would probably not include, for example, a candidate's cost of driving to a town hall to register to vote and, later, of driving to vote, although even that driving fits within Act 64's literal definition of expenditure. At the other end of the spectrum, candidate Jones's purchase of an ad stating *Vote for Jones Next Tuesday* would certainly be an expenditure. In between are literally a multitude of activities that may influence an upcoming election but lack an accompanying statement of express purpose. As to these, the statute offers no guidance.
Potentially the most significant, but hardly the only, area of ambiguity involves activities of incumbent officials. Members of the executive and legislative branches engage in relatively continuous communication with the public that involves the use of resources in a way that will help a reelection effort and would therefore fit within the definition of *expenditure," if done by a *candidate* "for the purpose of influencing an election." The statute offers no guidance on the question of how these terms are to be applied in practice to an incumbent's activities. This is a fateful question. If most of the resource-consuming activities of officeholders are not *expenditures* because they occur in the course of the officeholder's public duties, incumbents will have an enormous advantage over challengers under expenditure limits. If most of these activities are *expenditures,* an incumbent officeholder might well use the bulk of permitted communications in the first year of the two-year cycle. There are also hundreds of intermediary positions, all of which are arbitrary to one degree or another.
Some interpretive guidance, but not much, may be gleaned from the definition of *candidate.*5 A "candidate" is someone who "has taken affirmative action to become a candidate." See id. Even apart from the self-evident circularity, the phrase "affirmative action" is not unambiguous. Persons who fully intend to run for office, but have not announced, engage in all sorts of conduct to bring themselves into the public eye, to appear interested and informed on public issues, and to commend themselves as potential candidates to the media and political leaders. These efforts require the use of money or things of value, are intended to influence the outcome of an election, and therefore meet the definition of expenditure if done by a "candidate." That issue thus turns on whether such conduct constitutes an "affirmative action."
A degree of clarity is added by the next sentence of the definition, which states that affirmative action shall include three kinds of acts. However, most of the basic ambiguity is left in place because the use of language of inclusion does not suggest that what follows is an exclusive list of *affirmative act[s].* The first set of included acts involves accepting "contributions" or making "expenditures" in excess of a total of $500. See id. § 2801(1)(A). This brings into the definition of candidate all of the ambiguities of the term "expenditure" -- and "related expenditure" -- including the pre-campaign conduct noted above that is fully intended to influence the outcome of an election. In addition, as the Secretary of State has noted, an individual not fully decided upon, but considering, a run for state-wide office will trigger the definition of candidacy by driving four round trips between Swanton and Brattleboro at 31* per mile. See 2001 Memorandum, supra. A person's official candidacy can also be triggered by acts of the person's political party deemed to be "related expenditures" valued in excess of $500. See Vt. Stat. Ann. tit. 17, §§ 2809, 2853(a); see also Ross Sneyd, Progressives' Poll Raises Question About Public Financing, Associated Press, Feb. 21, 2002. The two other acts included are filing a petition for nomination or announcing a candidacy. See Vt. Stat. Ann. tit. 17, §§ 2801(1)(B), (1)(C). However, these provisions clarify things that were not ambiguous. The limits on expenditures by candidates over the two-year cycle vary with the office sought, as follows:
Governor - $300,000
Lieutenant governor - $100,000
Other state-wide offices - $45,000
State senator - $4,000 plus $2,500 for each additional seat in the district county office - $4,000
State representative, single member district - $2,000, two member district - $3,000.
See id. § 2805a(a).
Incumbents may spend only 85% -- except for legislators, who may spend 90% -- of the expenditure limits. See id. § 2805a(c).
"Contributions" are similarly broadly defined as any *payment, distribution, advance, deposit, loan or gift of money or anything of value paid or promised to be paid to a person for the purpose of influencing an election . . . .* Id. § 2801(2).6 The limits apply to *single source* donors, defined as *an individual, partnership, corporation, association, labor organization or any other organization or group of persons which is not a political committee or political party.* See id. §§ 2801(6), 2805(a). Exempted from the definition of contribution are *services provided without compensation by individuals volunteering their time on behalf of a candidate.* Id. § 2801(2).
Ambiguities lurk in the word *paid to a candidate* with regard to resources put to a campaign's use by the resource's owner, for example, a campaign worker's use of a personal vehicle. Some of these ambiguities are cured in part by the definition of "related expenditures," discussed below.
Uncured are the ambiguities in the term *services provided without compensation* by volunteers. These uncertainties are particularly great -- and very important with regard to professional services. A few of the many questions that will arise are: If an employee or partner engages in political activity during working hours and the firm does not dock the appropriate amount of compensation, is that a contribution by the firm? Can professionals who are not solo practitioners provide free professional services to candidates? If a professional is not generally free under a firm's employment arrangements to moonlight professional services to others, is the provision of such services to a candidate in non-working hours a contribution by the firm to the candidate valued according to the firm's usual billing rate? And so on.
The definition of *single source* also contains ambiguities. For example, rendering a non-obvious interpretation, the Secretary of State has stated that partnerships may make contributions as a separate entity from the partners, who are free to make identical contributions as individuals. See 2001 Guide, supra. Questions also arise about corporations with only one shareholder, e.g., are professional corporations operated by solo practitioners firms separate from their owner for purposes of the contribution limits?
As noted, the contribution limits also apply to money, goods, or services provided to political parties, and the various affiliates of a party are treated as one unit for the purpose of these limits, i.e., a contribution to a Democratic town committee is viewed as a contribution to all Democratic town, county, and state committees and limited as noted immediately infra. See Vt. Stat. Ann. tit. 17, §§ 2801(5), 2805(a). This provision therefore necessitates some form of state-wide reporting and coordinating mechanism.
The limits on contributions also vary by office sought and political committee as follows:
Political party/political committee - $2,000
State-wide office - $400
State senate/county office - $300
State representative/local office - $200.
See id. § 2805(a).
Turning now to *related expenditures,* they are defined as *expenditures* (including, therefore, things of value and importing the ambiguities described above) *intentionally facilitated by, solicited by or approved by the candidate.* Id. § 2809(c).7 Related expenditures therefore include the value of mileage driven by campaign volunteers, the use by a volunteer of a residence, house phone, or computer, or other expenditures by volunteers for items such as paper, pens, etc.
The law regulates *related expenditures* in two ways. First, it subjects them to the limits on contributions described above. Every use of an in- kind resource -- car, phone, computer, etc. -- must thus be valued and totaled, with direct cash contributions, on an ongoing basis. See id. § 2809(a). Use of the in-kind resource must cease when the contribution limit is reached.
Second, when an individual's related expenditures exceed $50, the candidate on whose behalf they were made must treat them as a campaign expenditure limited by the statute. See id. § 2809(b). This means that, over a two-year period, every supporter of a candidate who drives the family car to campaign meetings or provides paper, pens, phones, refreshments, or rooms for meetings, must keep a running total and, when the total exceeds $50 -- driving an average of seven miles per month at 31* per mile triggers this - - the candidate must fit it under the statutory limit on candidate expenditures.
Related expenditures also include activities of political parties, such as polls, mailings, dinners, other events, etc.8 If such party activities fall within the definition, they must be treated as contributions to, and expenditures by, the candidate. Such activities can, therefore, trigger an official candidacy, destroy eligibility for public financing, or exhaust the total that a candidate may spend in the two-year cycle. See 2001 Guide, supra; see also Vt. Stat. Ann. tit. 17, §§ 2805a, 2853. It will be recalled that the district court struck down the provisions of Act 64 subjecting related expenditures by parties to the Act's contribution limits, e.g., no more than $400 in cash or related expenditures to a candidate for state-wide office. Given the holding of Colorado II, 533 U.S. at 465, these provisions are now revived.
To illustrate the effect of these provisions, I have added as Appendix A a letter from the Secretary of State responding to an inquiry as to whether certain party activities should be deemed related expenditures attributable to a particular candidate. The letter makes it clear that parties and their candidates can avoid the risk of legal disaster only by eschewing normal and necessary political activities. There is danger, for example, in sharing party-funded poll results with candidates or potential candidates; candidates or potential candidates must avoid any knowledge of party mailings; candidates must avoid participation in planning or even approving a party event (a party event at which a candidate is introduced apparently must be a "surprise party"); and parties must avoid mailings that have a "primary thrust" of supporting candidates. See Appendix A, infra. The Secretary and Attorney General wisely advise, "Each party and potential candidate should review proposed activities with their own counsel," although this will be difficult for the candidate where he or she must remain ignorant of the event. Id.
Two further points regarding the substance of Act 64 need to be made. The first is that the costs of complying with the law's various provisions are not exempted from the limits on expenditures. See 2001 Guide, supra. Raising contributions itself costs money and is an expenditure. See id. Indeed, the limits on the size of contributions increase these costs. Moreover, for a candidate to comply with the expenditure limits, he or she must, over a two-year period, either restrict the activities of supporters and the party organization, including the driving of personal vehicles, that constitute related expenditures or keep in constant contact with supporters and the organization to monitor the size of such expenditures. Failure either to restrict or monitor related expenditures will run the very real risk that, at a critical stage of the campaign, supporters will report that they have exceeded the $50 limit and have, therefore, made expenditures that must be counted as candidate expenditures and may exhaust the campaign limit. In a state-wide campaign, the monitoring and limiting of related expenditures might well require almost a full-time staff member.
Moreover, a candidate who does not have legal counsel and other professional services runs great risks. The ambiguities detailed above and the problems of valuation will confront candidates and supporters -- or at least those who seek to comply with the law as written -- with an ongoing need for professional advice. In fact, the Secretary of State and Attorney General advise that parties and candidates retain their own separate attorneys. See Appendix A. However, the cost of these attorneys, or the value of their services if obtained as an unpaid-for related expenditure, including its provision by a political party, is an expenditure. See Vt. Stat. Ann. tit. 17, § 2801(3).
The second point is that, although this legislation was fostered by groups experienced in these matters, it does not contain the usual exemption for editorials or op-ed pieces published by the media that endorse a particular candidate. See, e.g., N.Y. Elec. Law § 14-124 (exempting "any person, association or corporation engaged in the publication or distribution of any newspaper or other publication issued at regular intervals in respect to the ordinary conduct of such business"); Conn. Gen. Stat. § 9-333w(c) (exempting "any editorial, news story, or commentary published in any newspaper, magazine or journal on its own behalf and upon its own responsibility and for which it does not charge or receive any compensation whatsoever"). When a Vermont candidate meets with an editorial board, commentator, or columnist hoping for an endorsement, the value of any such published endorsement is, under the language of Act 64, a contribution and a related expenditure. See Vt. Stat. Ann. tit. 17, § 2809(c). Indeed, Vermont's Secretary of State has warned that if any individual or organization "requests a photograph, written presentation, or other assistance or information and informs the candidate that the requested information will be used in a publication . . . [providing such] will trigger a related expenditure." 2001 Guide, supra.
I turn now to the processes governing administration and enforcement of this law. Power is delegated to the Secretary of State to *adopt rules necessary to administer the provisions" regarding related expenditures. Vt. Stat. Ann. tit. 17, § 2809(f). Additionally, the Secretary of State has a general administrative role under Act 64, see, e.g., id. §§ 2803, 2810a, and she has actively offered her interpretations of the scope and application of the various provisions of Act 64. See, e.g., 2001 Guide, supra; 1999 Memorandum, supra; 2001 Memorandum, supra. As the discussion above indicates, interpretive and valuation questions abound and, as Appendix A indicates, answers that are not prolix or ambiguous are often not available. Moreover, there is at present every indication that the power to adopt *necessary* rules and administer the statute will be viewed by the Secretary of State as a very broad delegation of power. For example, interpreting a provision requiring that all contributions in excess of $50 be made by check, the Secretary has said that Act 64 allows so-called *pass-the-hat* fundraisers at which persons may anonymously contribute up to $50 in cash. See 2001 Guide, supra. Because the givers are anonymous, a candidate is not expected to monitor how many times an individual may have put $50 into ever-moving "hats" at several *pass-the-hat* fundraisers. This ruling thus promotes fundraising practices that do not really control the size of cash contributions, unless, of course, an anonymous donor foolishly drops a $100 bill into a hat.
Finally, candidates who want to seek a determination that an expenditure is a related expenditure made on behalf of their opponents may bring an expedited action in the Vermont Superior Court. See Vt. Stat. Ann. tit. 17, § 2809(e). Candidates wanting clarification of their own expenditures, or persons wishing to make expenditures on behalf of candidates, may request an advisory opinion from the Secretary of State. See 2001 Guide, supra. The costs of bringing or defending such actions, or making such inquiries, are not exempted from the definition of expenditure.
c) Act 64's Burden on Protected Speech
1) The Burden on Grassroots Political Activity
I begin with Act 64's burden on grassroots political activities, not only because such activities are core-protected speech under the First Amendment -- as well as indispensable to our democracy -- but also because proponents of Act 64 purport to justify its ubiquitously restrictive provisions in the name of increasing and enhancing such activities. See 1997 Vt. Laws P.A. 64 (H. 28) (findings nos. 6 and 8). In fact, Act 64 relentlessly makes such activities very difficult and often impossible. Indeed, the Act's most intrusive impact is not on the rich and powerful, who if necessary can engage in constitutionally protected independent political activity, but on the ordinary citizen who needs to participate in organized activity to have a political voice.
As the Supreme Court noted in Buckley, even the humblest kind of political activity requires the expenditure of resources. Buckley, 424 U.S. at 19. If the law as drafted is upheld, the quality and quantity of grassroots activities will be severely diminished.
Many grassroots political activities are sponsored and subsidized by local political party affiliates. Act 64 severely diminishes financial support for local party activity by treating all state, county, and local party committees as a single unit for purposes of contributions, expenditures, and related expenditures. The effect is, first, to reduce severely the amount of funding for such activities -- under the limits on related expenditures and contributions -- and, second, to leave political parties the choice between some form of top-down control or chaos -- under the single unit rule for contributions to parties. See Secretary of State Being Criticized for Fund Raising Ruling, Associated Press, May 28, 1999 (reporting that both Republican and Democratic party leaders were shocked by the single unit rule). Indeed, it is now known that party committees have, even without the now-revived limits on party contributions and related expenditures, concentrated more on mass media activities than grassroots activities. See 2001 Memorandum, supra; Campaigns Meant Cash for Vermont Media, Associated Press, Nov. 10, 2000 ("'That was one of the unintended consequences of the campaign finance law, that we saw much more spending on the media,' [Secretary of State Markowitz] said.").
Many other grassroots activities are related to the campaigns of particular candidates and are expressly inhibited by Act 64's treatment of related expenditures. As noted, Act 64 treats all related expenditures as contributions and, when they exceed $50, as expenditures by the candidate whose candidacy the activity was intended to support. See Vt. Stat. Ann. tit. 17, § 2809(b). They must therefore be counted in determining whether the candidate has complied with Act 64's spending limits. Because in-kind expenditures are included within related expenditures, any supporter engaging in the most common kind of political activities must keep detailed records over a two-year period of their value -- every mile driven, every stamp used, every use of a residence for campaign events, refreshments, pads, pencils, use of phones, etc. -- so that the total amount of such in- kind expenditures can be determined. If the related expenditures added to a person's monetary contributions to a candidate reach the contribution limit, the supporter must stop all support, even driving to a meeting, or violate the law.
For example, if a supporter holds a "meet the candidate" event in his or her house, the value of the space used, possibly the costs of refreshments,9 and the purchase of stamps for a mailing to local citizens to invite them to the event (or invitations by phone) are all related expenditures. See 1999 Memorandum, supra. Vermont's Secretary of State has stated that it usually takes one hundred invitations to attract twenty persons to a *meet the candidate* event. See id. Thirty-seven dollars would thus be used for postage alone for one event for twenty people. See United States Postal Service, First-Class Mail Rate Highlights, available at http://www.usps.com/ratecase/ first.htm. As the Secretary of State of Vermont has noted, such "meet the candidate" events are therefore severely limited by Act 64. See 1999 Memorandum, supra.
Adding to Act 64's intrusiveness on grassroots activities is the treatment of such related expenditures as expenditures by the candidate. Driving to meetings is among the most garden variety of grassroots political activities, but, under the law, a supporter who averages seven miles per month over the two-year cycle will have exceeded $50 in mileage expenses, and the candidate in question must treat that and all other resource- consuming activities by the individual as an expenditure by the candidate.
The effect is that a candidate's supporters cannot exercise free choice as to what activities to undertake. Because the candidate's expenditures are limited, the activities of all supporters must be coordinated and controlled top-down by the candidate so that the candidate can budget a campaign and not have to end it prematurely because of belatedly discovered related expenditures in excess of $50 that exhaust the expenditure limits. Were that to happen, a candidate, or any supporter over the $50 limit, would not even be able to drive the family car to the local town green to make a speech.
Another common form of grassroots activity is the contribution of time and expert services by local professionals to candidates. Here Act 64 is ambiguous, but the provision of such services may well be deemed to be a contribution and related expenditure of some considerable size, particularly if the professional is in a firm that normally restricts the moonlighting of professional services. Indeed, to exempt professionals would be precisely counter to the purpose of reducing the influence of special interests -- e.g., clients of lawyers or the lawyers themselves -- and the well-to-do.
2) The Burden on Candidate's Speech
My colleagues and the district court conclude that the limits on campaign expenditures are based on past experience and, with limited exceptions, are substantially the same as average expenditures by candidates in the past. See Maj. Op. at 44; see also Landell v. Sorrell, 118 F. Supp. 2d 459, 471- 72 (D. Vt. 2000). We have, however, no reliable evidence of past spending using Act 64's definitions.
The best, albeit highly flawed, evidence of spending in past elections would have been the candidate disclosure reports filed under Vermont law. It is not altogether clear what evidence the district court specifically considered in reaching its conclusions. However, on the face of the district court's decision, it appears that the district court relied heavily on testimony, some of which was conflicting, see id. at 470-72, and did not scrutinize in detail documentary evidence of past practices.10
More significantly, whatever the basis for the district court's conclusion, no one can have any idea as to the level of spending in prior years using Act 64's new and much broader definitions of expenditures and related expenditures. Under the prior law, candidates generally deemed only a campaign's out-of-pocket expenditures as reportable. See, e.g., Campaign Finance Report of Peter Brownell, December 14, 1998 (omitting mileage, value from use of computer, value from use of office, and expenses of supporters or aides); Campaign Finance Report of David Brown, October 26, 1998 (same); Campaign Finance Report of John Bloomer, Jr., December 14, 1998 (same). For example, there is only one candidate in the entire record whose reports include any mileage expenditures although it is inconceivable that candidates ran their campaigns entirely from home. See Campaign Finance Report of Patricia Welch, October 26, 1998 (listing costs and dates for mileage expenses). Also, under the prior law, there was no reason to collect information on, much less to calculate, related expenditures by supporters, and in particular the value of in-kind related expenditures. Finally, there was also no need under prior law to segregate and calculate expenditures by party committees, likely a huge amount, see infra note 11 and accompanying text, that would now be attributable under Act 64 to candidates. See Vt. Stat. Ann. tit. 17, § 2809(d).
The only thing we know for certain is that what candidates regarded as expenditures in the past -- generally direct cash expenditures out of the campaign's checking account -- is far less than what must be so regarded under Act 64's definitions of expenditures and related expenditures.
Moreover, prior spending is not a reliable guide for the needs of campaigns operating under Act 64, which imposes substantial costs of compliance with its terms that were not encountered under the prior law. As noted, most candidates will be unable to proceed safely without legal advice, and candidates running for state-wide office may need the services of an accountant as well. In the case of legislative candidates, such assistance could literally exhaust all the expenditures allowable under Act 64. (Retention of counsel by a party organization to help candidates would be a related expenditure.)
Much time and possibly much support staff will also be consumed by the need to monitor, coordinate, and control related expenditures that must be charged to the campaign. Finally, some candidates will encounter costs in bringing and defending lawsuits concerning the myriad of interpretive questions that will arise as a result of Act 64's ambiguous provisions.
There is, therefore, no reliable support for the claim that, based on past experience, Act 64's limits will have little effect on the quantity or quality of political speech. In the 2000 gubernatorial race, each major party candidate spent approximately $1 million, over three times Act 64's limit on combined primary and general election gubernatorial campaigns. See Office of the Secretary of State, Campaign Finance, Total Expenditures to Date - 2000 Election Cycle, available at http://vermont- elections.org/elections1/campaignfinance.html. And this was spent without counting related expenditures. A candidate for United States Senator in the same election also spent over $1 million on the general election. See Mary Ann Lickteig, Tuttle Asks Leahy to Use Campaign Funds to Preserve Land, Associated Press, Oct. 8, 1998 (detailing how Senator Leahy spent about $1 million in his campaign).
In fact, Act 64's limits are exceedingly low and will severely restrict activities of candidates for office. As noted, the Secretary of State has stated that exploratory efforts by persons trying to decide whether to run for state-wide office will use up $500 through four round trip drives between Brattleboro and Swanton. See 2001 Memorandum, supra. She has also stated that the $45,000 limit for lesser state-wide offices will be virtually exhausted by necessary advertising in the media. See David Gram, Dems Needle Each Other on Spending in Treasurer's Race, Associated Press, May 29, 2002.
The harshness of the limits on candidate expenditures is greatly exacerbated by the fact that a candidate's campaign cannot expect the candidate's party to provide the usual supplemental support of polls, offices, computers, phones, advertisements, mailings, and events, if the conduct "primarily benefits" fewer than seven candidates. See supra notes 8-9. Parties may make contributions and related expenditures benefitting candidates that total, over a two-year period, no more than $400 for each candidate for state-wide office, $300 for each candidate for the Senate, and $200 for each candidate for the House. There are six state-wide offices, thirty State Senators, and 150 State Representatives. A political party can, over a two-year period, make only a total of $4l,400 in contributions to, or related expenditures on behalf of, all its candidates for state office.
Although Colorado II allows such restrictions, 533 U.S. at 465, their effect must be considered in gauging the impact of candidate expenditure limits. A state-wide poll regarding candidates for the six state-wide offices would cost over $6,000. Letter from Mark F. Michaud, Vermont Democratic Party, to Vermont Attorney General General William Sorrell 1 (Feb. 28, 2002). If the poll data is shared with the six candidates, the poll would exceed Act 64's limits ($400 by 6) by over 100%. See Appendix A. The full effect of Act 64's limits has, of course, not been experienced yet,11 because the district court invalidated candidate expenditure limits and the contribution/related expenditure limits on political parties. With these limits now revived, the effect of limits on expenditures by candidates will be to dramatically lessen political debate in Vermont.
Expenditure limits will, therefore, greatly hamper candidates in getting their message to the public. The Secretary of State has noted that the expenditure limit for State Treasurer -- $45,000 -- leaves, after advertising, "no money to hire a campaign manager, do direct mail, lawn signs or bumper stickers." David Gram, Dems Needle Each Other On Spending in Treasurer's Race, Associated Press, May 29, 2002. She has also noted that the "tight contribution limits" of Act 64 were part of the cause for an "unprecedented amount" of independent expenditures in the 2000 Vermont election. See 2001 Memorandum, supra. As a result, candidates complained that "mailings or advertisements made on their behalf attributed to them opinions they did not hold, or sent negative messages about their opponent, in violation of their stated intent to run a positive campaign." Id. Expenditure limits will encourage even more extra-campaign spending and leave candidates without the means to set the record straight. Even "meet the candidate" events are severely limited, see 1999 Memorandum, supra, as noted above, and, although my colleagues propose, among other things, town barbecues and dinners as cheap but effective campaign methods, the nature and usefulness of these events, much less their financing, is hardly clear.
In any event, Buckley specifically rejected as unconstitutional restrictions on modes of campaign advocacy prompted by a governmental view that some modes are *wasteful* or *excessive.* Buckley, 424 U.S. at 57. Even under the new constitutional test devised by my colleagues -- whether expenditures limits match the likely costs of running an "effective" campaign -- Act 64 does not pass muster. There is simply no data in the record suggesting that anything other than a drastic reduction of political speech will result from Act 64's limits.
Low limits of course also exacerbate the highly discriminatory and arbitrary effect of Act 64's selection of a two-year cycle. Under these limits, a candidate who has to run in a contested primary election may well be unable to communicate with the public at all -- literally stuck in his or her driveway -- in a general election.
Moreover, there is no provision in Act 64's limits that adjusts for increased costs of campaigns. Although Act 64 is premised on the view that elections are "too expensive" -- a view expressly rejected as a valid reason for expenditure limits in Buckley, id. -- the "costs" of campaigning are not determined by candidates. Rather, they are determined by a competitive market for resources that are used in campaigns but are also used, and far more extensively, for non-political communication. The price of those resources is therefore set in a market that is independent of political campaigns and in which candidates for office must compete with other consumers.
An inability to pay the market price for communication resources will stifle political speech. Nevertheless, there is no provision for future inflation in Act 64's limits although even slight annual increases in the consumer price index will in a few short years substantially reduce further the ability of candidates to communicate with voters. For example, the cost of postage stamps is now higher than when Act 64 was passed. See It Now Costs 3 Cents More to Mail a First-Class Letter, N.Y. Times, June 30, 2002, at 18. A Middle East crisis may lead to a large increase in the price of gasoline and, accordingly, a mileage valuation that, if it occurred during a campaign, might leave candidates unable to make even door-to-door visits. As noted above, the effect of rising costs has already been observed by Vermont's Secretary of State. With regard to a campaign for State Treasurer -- with an expenditure limit of $45,000 -- she noted that, "The cost of paid media has changed quite a bit in the last four or five years. With prices for television ads, and even radio ads, running a campaign on $45,000 will leave you no money to hire a campaign manager, do direct mail, lawn signs or bumper stickers." David Gram, Dems Needle Each Other on Spending in Treasurer's Race, Associated Press, May 29, 2002. It goes without saying there also would be no room under the spending cap for grassroots activities that would have to be included as related expenditures.
Act 64 also does not take into account the fact that new but costly methods of communication may come into being. Campaigns may communicate with voters only by going to where the voters are or using a medium watched or listened to by voters. For example, because the development of cable television broadened viewership opportunities for the public, it also required candidates who wished to communicate through television to buy ads on many, instead of a few, channels. For another example, the development of the Internet has made it possible for candidates to offer websites to provide information to potential voters, a fantasy fifteen years ago. Act 64 takes a Luddite view of political communication and prevents candidates from adjusting to new needs and costs, even though the Supreme Court has expressly declared that government is not to make that choice. See Meyer, 486 U.S. at 424; Buckley, 424 U.S. at 57.
3) The Burden on Challengers
The fact that limits on candidate expenditures tend to disadvantage challengers in campaigns against incumbents is recognized both in the provisions of Act 64 -- which has slightly lower limits for incumbents -- and in its legislative history. See, e.g., Hearing on H. 28 Before the Vt. House Comm. on Local Gov't, 64th Biennial Sess. (1997) (statement of Rep. Terry Bouricius); Hearing on H. 28 Before the Senate Comm. on Gov't Operations, 64th Biennial Sess. (1997) (statements of Sens. Seth Bongartz and Jean Ankeney). The Supreme Court has also noted that limits on candidate expenditures may "handicap a candidate who lacked substantial name recognition or exposure of his views before the start of the campaign." Buckley, 424 U.S. at 57. Incumbents, moreover, have other advantages, such as an existing organization and tested donor lists.
The degree of the adverse effect of Act 64 on challengers to incumbents will depend in large part on discretionary and arbitrary rulings as to what kinds of activities and speech by incumbents will be deemed official communication by officeholders to the public and what kinds will be deemed to be campaign expenditures. Of course, virtually every activity by an incumbent officeholder intending to seek reelection will have a political effect, and such officeholders will to one degree or another take that effect into account in determining their behavior. The law provides marginally lower limits on expenditures by incumbents, but this largely inconsequential difference will be rendered wholly irrelevant if any substantial communications by incumbents are deemed not to be campaign expenditures. Conversely, the advantage of incumbents under limits will also depend on what activities by non-announced challengers are deemed to be by a *candidate* and *for the purpose of influencing an election.* See generally Vt. Stat. Ann. tit. 17, §§ 2801(1), (3).
These issues, of course, will likely be addressed in the first instance by an incumbent official, the Secretary of State. See 2001 Guide, supra. Should these rulings be adverse to incumbents -- a not very likely scenario -- the incumbents can overturn them by legislation. If the rulings favor incumbents, challengers have no such option.
Moreover, selection of the two-year cycle as the governing time period collapses primary and general elections under one expenditure limit and will in the main favor incumbents who will face serious primary challengers less frequently than those seeking a party nomination to challenge an incumbent. Indeed, there appears to be little other reason justifying the choice of the two-year cycle.
Because the hands-off approach of my colleagues accords expansive deference to legislative judgments as to expenditure limits, incumbents are given a weapon that can be manipulated virtually at will in the future. A low level of judicial scrutiny necessarily leaves legislators with discretion to alter campaign finance regulations to affect upcoming elections. We have seen an example of this in New Jersey where a campaign finance law was deliberately changed in an (unsuccessful) attempt to bolster the candidacy of a new entrant into the race for Governor. See David M. Halbfinger, Substitute Candidate, on Short Notice, Stakes Claim in Race for New Jersey Governor, N.Y. Times, Apr. 27, 2001, at B5; David M. Halbfinger, New Jersey Legislature Votes To Delay Primaries 3 Weeks, N.Y. Times, Apr. 24, 2001, at B5. In Vermont itself, Governor Dean sought to use money reserved for the public financing of campaigns -- a key part of Act 64 -- to pay general state expenditures. See State May Tap Campaign Finance Fund to Ease Budget Crunch, Associated Press, Dec. 5, 2001.
My colleagues exhibit no concern regarding the influence of political self- interest on the setting of expenditure limits, notwithstanding that Act 64's major premise is that Vermont incumbents so crave reelection that they ignore official duties and personal honor to that end. However, incumbent legislators can exercise a direct influence on the outcome of elections in two ways: campaign finance regulation and reapportionment. My colleagues reassure us that the exercise of such influence in campaign finance regulation is not likely. I would suggest that the likelihood of self- interest prevailing in the long run would be informed by a study of the effect of legislative reapportionment on election districts for the United States House of Representatives, an area in which courts have deferred to legislative judgment. See White v. Weiser, 412 U.S. 783, 794-95 (1973) ("From the beginning, we have recognized that 'reapportionment is primarily a matter for legislative consideration and determination.'" (internal quotation marks omitted)); see also Miller v. Johnson, 515 U.S. 900, 915-16 (1995).
Reapportionment of House districts now has one and only one guiding star: incumbent protection. See John Harwood, No Contests: House Incumbents Tap Census, Software to Get a Lock on Seats, Wall St. J., June 19, 2002, at A1 ("Thanks to the play-it-safe strategies of Republicans and Democrats alike, and to the sophisticated technology now used in redistricting, competition is being squeezed out of the House -- with huge consequences."); Richard Perez-Pena, With 2 Congressional Seats Lost, Albany Begins Battling over Who Must Go, N.Y. Times, Jan. 22, 2002, at B1. Indeed, reapportionment is now widely regarded as little but the *rigging* of elections in the name of the special interest, namely incumbent protection, that dominates legislative decisions. See No Contests: House Incumbents Tap Census, Software to Get a Lock on Seats, Wall St. J., June 19, 2002, at A1 (describing the practice of "sweetheart" gerrymandering by incumbents of both parties). I know of no reason why the guiding star in reapportionment decisions will not over time become the guiding star in campaign finance regulation.
4) The Burden on the Press
As noted, the law does not exempt editorial or op-ed endorsements of candidates by the media from the definitions of contribution, expenditure, or related expenditure. Such support is a *thing of value* that, if *facilitated* or *solicited* by a candidate, would be a related expenditure. See Vt. Stat. Ann. tit. 17, §§ 2801(3), 2809(c); see also 2001 Guide, supra. Indeed, as noted above, Vermont's Secretary of State has warned candidates that providing a photo or written information to anyone who might use it in a publication advocating their election will trigger a related expenditure. See id.
The theory underlying Act 64 would easily include the media as a powerful interest having a stake in government action just like any other profit- making business or organized economic special interest -- e.g., the newspaper quoted by my colleagues is part of a huge multi-national organization, undoubtedly one of the larger companies doing business in Vermont. See Gannett Co. Inc. Operations, available at http://www.gannett.com/map/ units.pdf. However, many proposals to regulate campaign finance exempt the media, see, e.g., N.Y. Elec. Law § 14-124; Conn. Gen. Stat. § 9-333w(c), often including a definition of what organs of communication constitute exempted media, see e.g., Bipartisan Campaign Reform Act of 2002, § 201(f)(3)(B), Pub. L. No. 107-155, 116 Stat. 81.12 Nevertheless, Act 64 does not contain such an exception. Given the plain language of Act 64 and the consistency of its theory with that language, Act 64 can fairly be said to burden the press, and any candidate who seeks its support, quite as much as it burdens other candidates and their supporters.
5) The Burden on Party Affiliates
As noted, Act 64 treats a contribution to a state, county or local affiliate as a contribution to all affiliates. See Vt. Stat. Ann. tit. 17, §§ 2801(5), 2805(a).
My colleagues note that "the local and state affiliates will now have to record and coordinate their contributions,* but reassure us that *the provision does not impose any organizational burden on the party outside of the campaign finance realm, and requires no broader organizational reform.* However, that is like saying *I'm not going to let you cross this bridge, but I'm not going to say whether you must swim and probably drown or hire a boat to cross the river.* Any such recording and coordination of financing has to be done through a state-wide party organization that parcels out funds. This centralizing of party funding will of course make grassroots political activities sponsored by local party affiliates -- the indispensable stuff of American politics -- extremely difficult. In fact, when the Secretary of State ruled that a contribution to one party organization constituted a contribution to all affiliates, both Republican and Democratic state leaders registered shock -- another example of the lack of scrutiny given the actual provisions of Act 64 -- and opined that grassroots activities would be severely inhibited. See Secretary of State Being Criticized for Fund Raising Ruling, Associated Press, May 28, 1999 (noting one political operative's stunned response as being "Someone's totally taken leave of their senses").
d) The Sufficiency of the Governmental Interests
Several governmental interests are asserted as justifications for Act 64.13 These include eliminating special access or the appearance of special access of donors to officeholders, reducing the influential effect of bundling contributions, and increasing citizen and voter participation in the electoral process. See Maj. Op. at 30-42; see also 1997 Vt. Laws P.A. 64 (H. 28). All of these interests were rejected by the Supreme Court in Buckley, 424 U.S. at 25-26, and have not been demonstrated in the present case as having sufficient nexus to the limits on candidate expenditures and related expenditures.14
Before turning to expenditure limits, however, I note that, as to some of the restrictions on political activity imposed by Act 64, no governmental interest whatsoever has been proffered as a justification. Consider, for example, adoption of the arbitrary and highly discriminatory two-year cycle. See Vt. Stat. Ann. tit. 17, §§ 2801(9), 2805(a), 2805a(a). A two- year cycle does not reduce the influence of special interests, much less increase citizen or voter participation. Act 64's public financing provisions recognize the need for greater financing on the part of those who must run two campaigns rather than one. See id. §§ 2855(a), (b). Collapsing primary and general elections under a single expenditure limit is thus a flat-out suppression of speech for no asserted reason, save perhaps for the unspoken reason of incumbent protection.
Similarly, the treatment of a contribution to any party affiliate as a contribution to all affiliates, see id. § 2801(5), serves none of the purposes asserted. Because Act 64 limits expenditures by political parties on behalf of candidates on an aggregated basis, contributions to separate affiliates cannot serve as a conduit allowing individuals to evade the limits on single source contributions. See Colorado II, 533 U.S. at 464-65 (permitting restriction of coordinated party expenditures to minimize circumvention of contribution limits).
While serving none of Act 64's asserted goals, the aggregated treatment of contributions to affiliates impairs the activities of local party committees by forcing centralized coordination of financing, eliminating the power of local committees to raise funds for local activities. One of the most vital and fertile areas of democratic political activity in America is the local party committee, which, while loosely related to larger party organizations, is the source of grassroots activities that permit citizens to participate and seek change. Local party activities are a primary method by which a changing public opinion is absorbed gradually into the system, rather than being unheard until it reaches explosive force. These activities require funding. By impairing that funding, Act 64 impairs those activities. See Secretary of State Being Criticized for Fund Raising Ruling, Associated Press, May 28, 1999 (noting that leaders of both parties warn that "the ruling would have the effect of undermining the goal of Vermont's new campaign finance law to encourage more grassroots political activity").
Freedom of association includes the right not only to engage in group activities but to affiliate one group with another, on a horizontal, vertical, or hierarchical basis, loosely or with centralized control. The choice is to be made by the citizens involved, not by government. See Timmons, 520 U.S. at 358, Meyer, 486 U.S. at 424; Buckley, 424 U.S. at 57.
Finally, no reason is given for applying expenditure limits to candidates who desire to fund their own campaigns. See generally Vt. Stat. Ann. tit. 17, § 2805a(a). Such candidates already have "access" to themselves. Again, speech is suppressed for no reason. See Buckley, 424 U.S. at 44-45.
Turning to the reasons asserted as constitutional justifications for expenditure limits, these have already been considered and rejected by the Supreme Court. Buckley rejected in the most explicit terms the notion that government may under a Constitution containing the First Amendment limit the amount of political speech by candidates and regular citizens. See id. It is no surprise that many of the arguments made in favor of Act 64 rehash those considered by Buckley because Act 64 was intended by its proponents as a vehicle to overturn Buckley's ruling. See 2001 Memorandum, supra; Hearing on H. 28 Before the Vt. House Comm. on Local Gov't, 64th Biennial Sess. (1997) (statement of Anthony Pollina); Hearing on H. 28 Before the Vt. Senate Comm. on Gov't Operations, 64th Biennial Sess. (1997) (statement of Sen. William Doyle); Vt. House Comm. of Conf., Report on Campaign Finance, H. 28, 64th Biennial Sess. (1997).
For example, the question of special donor access or the appearance thereof was highlighted both by the Congress that enacted the expenditure limitations struck down in Buckley, see Minority Views on Report of the Comm. on House Admin. to Accompany H.R. 16090 (July 30, 1974), reprinted in Legislative History of Federal Election Campaign Act Amendments of 1974, at 749 (1977), and by the Court of Appeals for the District of Columbia, which upheld those limitations and was reversed in Buckley. Buckley v. Valeo, 519 F.2d 821, 838 (D.C. Cir. 1975), aff'd in part and rev'd in part, 424 U.S. 1 (1976). That court expressly noted that *[l]arge contributions are intended to, and do, gain access to the elected official,* id., an observation interchangeable with language in my colleagues' opinion. To be sure, the Supreme Court did not use the word *access* in Buckley, although it did use the analogous term, *improper influence.* Buckley, 424 U.S. at 27, 45-46. Having held that corruption itself or the appearance thereof -- bribes -- was not a sufficiently compelling governmental interest to justify limits on expenditures by candidates, id. at 55, the Court hardly had to go on to say that access or the appearance of access -- returning or taking a phone call from a donor -- was also not compelling. Reducing bribes is generally regarded as a far more compelling interest than reducing phone calls.
It is also suggested that the practice of bundling contributions by those with common interests justifies expenditure limits. My colleagues assert that the practice of bundling was unknown at the time of Buckley. However, the concept of pooling contributions by persons with common interests is hardly new. Indeed, at the time of Buckley, proponents of the 1974 Act relied heavily on pooled contributions by various firms in particular industries as evidence of improper influence. See Senate Floor Debates on S. 3044 (Mar. 28, 1974, Apr. 3, 1974) (statements of Sens. Griffin, Baker), reprinted in Legislative History of Federl Election Campaign Act Amendments of 1974, at 259, 365-66 (1977); House Floor Debates on H.R. 16090, (Aug. 8, 1974) (statement of Rep. Dickinson), reprinted in Legislative History of Federal Election Campaign Act Amendments of 1974, at 917 (1977). An amendment in the House that would have prohibited pooling was introduced, voted on, and rejected. See Minority Views on Report of the Comm. on House Admin. to Accompany H.R. 16090 (July 30, 1974), reprinted in Legislative History of Federal Election Campaign Act Amendments of 1974, at 752-53 (1977); House Floor Debates on H.R. 16090 (Aug. 7, 1974), reprinted in Legislative History of Federal Election Campaign Act Amendments of 1974, at 858-59 (1977). Even the findings of the Buckley district court as to large contributions catalogued them by industry as well as by individual donor. See Joint Appendix of District Court Findings at 86-143, Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam) (Nos. 75-436 and 75-437).
In particular, much attention was given at the time of Buckley to the 1972 campaign contributions by the dairy industry, in which milk producers pooled a large sum and then broke it down into small committees to avoid disclosure. See Senate Floor Debates on S. 3044 (Mar. 26, 1974, Mar. 27, 1974, Mar. 28, 1974, Apr. 3, 1974, Apr. 4, 1974) (statements of Sens. Hathaway, Griffin, Hollings, Baker, Kennedy), reprinted in Legislative History of Federal Election Campaign Act Amendments of 1974, at 205, 225, 257, 365, 376-77 (1977). This incident was in fact featured in the Court of Appeals decision that upheld expenditure limits, Buckley, 519 F.2d at 839 n.36, and was reversed by the Supreme Court, Buckley, 424 U.S. at 55. The term *bundling* may be new, but the concept is long in the tooth.
Moreover, with respect to bundling, my colleagues note the Vermont practice of special interests holding fundraisers in which representatives of different firms gather to make contributions. Of course, the ruling of the Secretary of State regarding the acceptance of anonymous contributions up to $50 in *pass-the-hat* fundraisers indicates that Act 64, as interpreted administratively, in fact allows the practice my colleagues condemn. See 2001 Guide, supra.
The record in this case adds nothing to what was considered and rejected in Buckley. In fact, there is much that is implausible in the portrait of the Vermont legislature drawn by the proponents of Act 64 in attempting to demonstrate a compelling governmental interest. The persons quoted in my colleagues' opinion portray members of the Vermont legislature as susceptible to corruption and so obsessed with soliciting or conferring with cash donors that they have very little time to confer with ordinary citizens. See Maj. Op. at 30-42 (describing candidates as being "locked away" in fundraising activities instead of "out with the public" because "contributors effectively buy candidates' time and attention").
We are told essentially the following. The money spent on campaigns has been spiraling over the forty or more years in which Vermont has toyed with expenditure limits. See 1997 Vt. Laws P.A. 64 (H. 28) (finding no. 1); Maj. Op. at 10, 28-29. The urge to raise campaign money has increased accordingly. See id. at 31, 37. The average candidate for office has historically spent less in his or her campaign than the limits set by Act 64. See id. at 43-44. In concrete terms, this means that the average campaign cost for single-member Vermont House or Senate races has spiraled to $2,000 and $4,000 respectively. See generally Vt. Stat. Ann. tit. 17, §§ 2805a(a)(4), (a)(5). Raising these sums creates a dependence among legislators on large contributors who for the next two years make so many calls to them that the legislators have little time to talk with regular citizens. See Maj. Op. at 32-34.
The record justifying Act 64's massive regulation of political speech is not strong; in fact, it is pitifully weak. Even if legislative candidates must raise cash amounts well in excess of $4,000, this task would hardly leave them obsessively dependent on large contributors who take up large amounts of the legislators' free time. Moreover, some of the hyperbole quoted by my colleagues about official time spent with large donors comes from a person described as a "lobbyist." In fact, that person was a lobbyist for Act 64, whose success in that regard entirely belies his assertions about elected officials listening only to large contributors.
There are also, of course, the accusations of corruption with precisely the same scripted sound-bites that are used in every national talk-show discussion of these issues. Rhetoric aside, the only particularized evidence of improper influence relied upon by my colleagues consists of two anecdotes. One involved *widely reported* meetings of major dairy companies with unnamed officials when such meetings were denied to smaller dairy organizations; the other involved *alleg[ations]" about the influence of the Vermont slate industry on certain legislative committee members.
The First Amendment does not permit the suppression of speech based on such untested anecdotal evidence. See, e.g., United States v. Playboy Entm't Group, Inc., 529 U.S. 803, 820-21 (2000) (requiring more than "anecdotal evidence" of "signal bleed" problem in support of a regulation requiring broadcasters to fully scramble sexually-oriented programming); Stanley v. Georgia, 394 U.S. 557, 567 (1969) ("Given the present state of knowledge, the State may no more prohibit mere possession of obscene matter on the ground that it may lead to antisocial conduct than it may prohibit possession of chemistry books on the ground that they may lead to the manufacture of homemade spirits.").
Moreover, if the claims of widespread, improper influence are true, anecdotes should not be the only available evidence. Disclosure of contributions has been required in Vermont for years, offering documented support for the claims, if accurate, of dependence on large or bundled contributions and of the influence of those contributions. See, e.g., Vt. Stat. Ann. tit. 17, §§ 2811(a)(1)-(4) (1996) (amended 1997) (requiring campaign reports for candidates' contributions and expenditures). The lack of reference to available hard evidence of who gave what to whom suggests that the portrait of corruption painted by the proponents of Act 64 is vastly overdrawn. When the Supreme Court decided Buckley, it had before it detailed records of actual large contributions and the amount of out-of- pocket expenditures by candidates. See, e.g., Buckley, 424 U.S. at 32-34 & nn. 35-40; Joint Appendix of District Court Findings at 264, 483, Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam) (Nos. 75-436 and 75-437). Nevertheless, it struck down the expenditure limits as facially unconstitutional. See Buckley, 424 U.S. at 54-55. Here, the opposite result is reached based on anecdotal evidence, even though better evidence, if widespread corruption exists, is available.
Moreover, the proponents of Act 64 never examine the details of that Act or how they impact ordinary political activities that are indispensable to democratic rule. Consequently, they never weigh the cost in suppressed activity. Indeed, there is every indication that the details of Act 64 were ignored by many of its proponents. It is certainly hard to find any other explanation for the fact that the executive director of the Vermont Democratic party questioned, as harmful to grassroots activities, the ruling by the Secretary of State that Act 64's limits on contributions to parties treat all affiliates as a single unit, see Secretary of State Being Criticized for Fund Raising Ruling, Associated Press, May 28, 1999, even though the ruling simply followed the plain language of Act 64. The lobbyist who secured passage of Act 64 and who is quoted at great length in my colleagues' opinion, has since brought an action in the district court to have the treatment of related expenditures declared unconstitutional as infringing on the right to engage in political activities. See Vermont Reformer Says Law He Authored Is Unconstitutional, Political Finance, The Newsletter, March, 2002 (describing Anthony Pollina's lawsuit to have Act 64 ruled unconstitutional); Ross Sneyd, Progressives Sue To Ensure Public Financing for Pollina, Associated Press, March 12, 2002 (noting that Anthony Pollina calls his lawsuit "ironic"); see also Complaint at 1, Pollina v. Markowitz, No. 2:02-CV-63 (D. Vt. Mar. 11, 2002) ("Plaintiffs claim that certain provisions of Act 64 violate their First Amendment free speech and association rights, do not serve compelling state interests, and violate equal protection and due process of law, both facially and as applied.").
Other officeholders quoted by my colleagues have filed disclosure forms that indicate a continuing lack of knowledge of the requirements of Act 64, in particular the need to record and disclose mileage. See, e.g., Campaign Finance Report of William Doyle, October 25, 2000 (listing no mileage expenses for himself or any supporters, or any value derived from use of office space, computers, utilities, etc.); Campaign Finance Report of Elizabeth Ready, December 18, 2000 (listing no expenses for value of office space, computers, utilities, basic office supplies, etc.); Campaign Finance Report of Elizabeth Ready, September 25, 2000 (same).
Moreover, the constitutional analysis used by my colleagues in determining that Act 64's expenditure limits are reasonable
-- that there is an average election that can serve as the compulsory norm for all elections -- is dangerous, and antithetical, to democracy. The average election will typically not involve issues that divide large portions of the public and a clear-cut attempt to alter government policies on those issues. It is the non-average election that is often the historic election, one in which the outcome is heavily contested, the debate is most widespread, the public interest is at its highest, and the most money is spent. Such an election was the New Hampshire primary of 1968, in which Eugene McCarthy, later a plaintiff in Buckley, in one of the most heavily financed primary races in history, badly damaged a sitting President in a debate over the Vietnam war. McCarthy spent a then-unprecedented $12 per vote received in that single primary. See George F. Will, Rules to Keep the Rascals In, Newsweek, Jan. 26, 1976, at 80. Vermont had a similar election in 2000, in which civil unions and other divisive issues were at stake. See Ellen Goodman, Vermonters Are Caught up in a Civil War over Civil Unions, Boston Globe, Nov. 2, 2000, at A27; Tom Puleo, Governor's Race Tests Vermont Values; "Gay Marriage" Issue Is Monopolizing a Bitter Battle, Hartford Courant, Oct. 30, 2000, at A1. More money was spent in the 2000 election than in any prior Vermont election. See Lawmakers To Revisit Campaign Finance Law, Associated Press, Nov. 14, 2000 (noting that the 2000 gubernatorial campaigns set the record for money spent); see also Ross Sneyd, Campaign 2000 Involved Lots of Spending, Associated Press, Dec. 18, 2000 (describing record spending levels for many elections across Vermont in 2000).
McCarthy's New Hampshire campaign of 1968 had national significance, while the 2000 Vermont gubernatorial election had unquestioned state, and possibly national, ramifications. Both involved unprecedented citizen participation. See 2000 General Election Results for Gubernatorial Race, available at http://cgi.sec.state.vt.us/cgi-shl/nhayer.exe ("2000 Election Results") (showing that voter turnout increased in Vermont by 34.5% in the 2000 election compared to previous election); Hugh Gregg, A Tall State Revisited, at app. (1993), available at http://www.politicallibrary.org/TallState/1968dem.html. And both involved, not surprisingly, unprecedented campaign spending.
This brings me to the argument of Act 64's proponents that the Act will restore public confidence in government and thereby increase citizen and voter participation in elections. Of course, every attempt to suppress speech is based on claims that the speech in question, if allowed to go on freely, will induce behavior that is undesirable. Critics of literature, theater, or television with explicitly sexual or violent themes claim that such speech may induce similar behavior. See, e.g., 1 American Psychological Association, Report of the American Psychological Association Commission on Violence and Youth, at 6 (1992), available at http://www.apa.org/pi/pii/violenceandyouth.pdf (stating that exposure to violence in the mass media increases the risk of youth involvement in violence). Those who would censor political speech will also argue that such speech will reduce confidence in government. I have no doubt that supporters of the Alien and Sedition Acts made such arguments and that many incumbent officeholders view vigorous opponents as undermining confidence in government.
However, governmental suppression of speech must be based on a compelling demonstration that the speech will incite conduct -- here an alleged indifference to politics on the part of citizens -- that government has a right to prevent. See Boos v. Barry, 485 U.S. 312, 335 (1988) (Brennan, J., concurring in part and concurring in the judgment) ("Our traditional analysis rejects such a priori categorical judgments based on the content of speech, requiring governments to regulate based on actual congestion, visual clutter, or violence rather than based on predictions that speech with a certain content will induce those effects." (internal citations omitted)); Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 508 (1969) ("[I]n our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression."). I do not doubt that government can and ought to take steps to enhance citizen confidence, but suppressing political activity will not encourage either more confidence or more political activity.
In fact, no little part of the public confidence argument is a quintessential self-fulfilling prophesy. The confidence of Vermont citizens is unlikely to be substantially enhanced so long as Act 64's proponents and their allies continue to make exaggerated but weakly supported claims about how corrupt government is in Vermont. Also, it is difficult to reconcile the hypothesized public preference for candidates who raise small amounts and run spartan campaigns with the judgment of professional politicians that amply-resourced campaigns are needed to attract voters.
In any event, an indifference to politics cannot be traced to excessive spending for electoral purposes. To the contrary, the New Hampshire 1968 primary and the Vermont 2000 election involved heavy citizen participation because of voter interest in the issues and the critical fact that candidates who were divided on those issues could raise and spend money debating them. Record amounts were spent on the 2000 gubernatorial election in Vermont. See Ross Sneyd, Campaign 2000 Involved Lots of Spending, Associated Press, Dec. 18, 2000. The theory of Act 64, as stated in the legislative findings, is that public involvement decreases as spending increases. See 1997 Vt. Laws P.A. 64 (H. 28) (findings nos. 4 and 10). In fact, as noted, a full -- perhaps also record breaking -- 34.5% more people voted in the 2000 election than in the prior gubernatorial election. See 2000 Election Results, supra.
Nor is there experience elsewhere to the contrary. Before 1976, presidential general elections were privately funded with no limits on contributions and expenditures. Claims of a lack of citizen confidence were made. From 1976 through 1988 -- before the era in which so-called soft money played a growing role -- presidential general elections were fully funded by government and subject to expenditure limitations. No appreciable increase in turnout or confidence in government has been noted.
Like the concept of an average election, there is much in the public confidence argument to fear. Proponents of Act 64 rely upon evidence such as a poll showing that 75% of voters believe that large corporations have too much influence and a newspaper article stating similar conclusions. If polls suggesting that some groups have too much power demonstrate a sufficient governmental interest to silence those groups, political speech cannot be protected. The media, moreover, might consider the full implications of the who-has-too-much-influence theory, as indeed the provisions of Act 64 indicate.
Act 64 reduces the contribution limits for state-wide races to $400, Senate races $300, and House races $200. See Vt. Stat. Ann. tit. 17, § 2805(a). There is nothing in the record of this case to suggest that these draconian limits are not sufficient to dispel any possibility of corruption or the appearance of corruption. See Buckley, 424 U.S. at 55 (holding that "[t]he interest in alleviating the corrupting influence of large contributions is served by the Act's contribution limitations and disclosure provisions," and therefore does not justify campaign expenditure limitations). The proponents of Act 64 have not mentioned anything other than the hypothesized, large, cash contributions as leading to an improper influence on government. There is no evidence whatsoever that expenditures by supporters for "meet the candidate" events, or that supporters' use of a residence, computer or phone, purchase of stamps, or driving to meetings have ever caused a problem that calls for redress.
Moreover, there is nothing in the record to suggest that disclosure of amounts and sources of a candidate's campaign funds, in conjunction with low contribution limits, is not the proper democratic method of allowing voters to make their own decisions about the character of the people they elect. Nor is there anything in the record to suggest that a reduction of campaign activity, in particular grassroots activity, will lead to persons of better character being elected, particularly under the terms of a law enacted by those of purported lesser character.
The theory of Act 64 is that less political advocacy is better for us as a polity because so much political activity is engaged in by powerful groups. Because these groups are theoretically able to use every means of communication as a conduit of influence, political activity at every level must be reduced. Act 64 is, therefore, designed to impose relative silence on everyone. However, the truly rich and powerful can still engage in constitutionally protected independent political activities or buy a media outlet, while the regular citizen, who must speak through organizational activity, is silenced.
Act 64's full effects have not been felt because the district court's decision narrowed its applicability. If expenditure limits are revived, however, candidates and their supporters will be starved for resources to use for political speech. As noted, the draconian effects of limits on expenditures and related expenditures will be aggravated by the fact that political parties will not be able to spend more than the contribution limits of $400 (state-wide office), $300 (Senate), and $200 (House), for candidates. See Vt. Stat. Ann. tit. 17, §§ 2805(a), 2809(a). This will result in a drastic reduction of party support compared to prior years, see supra note 11 and accompanying text, and expenditure limits will prevent candidates from making up the difference even through small contributions. That is truly a move to silence.
e) The Excessive Discretion Accorded Administrators
Perhaps we can rely upon the wisdom of Vermont's Secretaries of State, now and in the future, to exercise discretion and mitigate the harsh effects of Act 64. However, truly mitigating rules would involve arbitrary decisions, and the very existence of that discretion is itself a constitutional problem.
Limits on campaign expenditures are like all limits on speech. If the limits are triggered, further speech is forbidden. It is standard First Amendment jurisprudence that such a restriction on speech must be carefully crafted to avoid vesting those who administer the law with excessive discretion as to its interpretation. See Forsyth County, 505 U.S. at 131 (requiring "narrow, objective, and definite standards"). The requirement that a law regulating speech embody workable and known standards is necessary both to alert those who are regulated to its terms, see Gentile v. State Bar of Nevada, 501 U.S. 1030, 1048 (1991) (requiring regulation of speech to give "fair notice" to those to whom it is directed), and to prevent enforcers from making decisions based on impermissible grounds, see id. at 1050-51 ("The prohibition against vague regulations of speech is based in part on the need to eliminate the impermissible risk of discriminatory enforcement."); Forsyth, 505 U.S. at 131 (noting "danger of censorship" where regulation allows excessive enforcement discretion).
Act 64 simply lacks discernible criteria for the many interpretive and valuation questions that it creates. If there is to be compliance with Act 64, there must be constant interpretation by the Secretary of State, the Attorney General, and the Vermont courts with regard to the vast number of questions that will arise election-by-election, campaign-by-campaign, and day-by-day. The answers to those questions are the equivalent of the granting or denying of a permit to speak. In interpreting the statute, however, the Secretary of State and the Vermont courts are afforded almost no guidance except for the proposition that the influence of special interests is to be reduced and that of regular citizens increased.
For example, the statute says nothing about the payment of debts or wind- down expenses of prior campaigns during the next two-year cycle. See 1999 Memorandum, supra. It is also unclear whether the (paltry) exception for expenses for "meet the candidate" events applies only to party sponsored events or all such affairs. See supra notes 8-9; see generally Vt. Stat. Ann. tit. 17, §§ 2809(d)(1)-(3). If Act 64 is enforced, valuation questions regarding the donation or use *of anything of value* will themselves be a constant issue, as will be ubiquitous questions concerning whether particular activities of officeholders, "candidates," or would-be "candidates" have "the purpose of influencing an election.* See generally id. § 2801. There is also little guidance as to what conduct is an *affirmative action to become a candidate,* or what professional services are donations or related expenditures by a firm rather than volunteer services. See id. §§ 2801(1), 2809.
The definition of "related expenditures" can provoke thousands of questions regarding actions of individuals or political parties in which the answer turns, after a potentially intrusive inquiry into the activities and thoughts of candidates and parties, on fine details of what was done, what was said, what was the "primary thrust" of the activity, and what was thought. See Appendix A. The Secretary herself has noted in her response attached as Appendix A that the likelihood of so many different factual circumstances arising prevents the drafting of precise rules regarding whether particular efforts by a party will be related expenditures on behalf of candidates, one of the most important questions arising under Act 64.
These issues are serious, bristling with First Amendment implications, and their resolution will ofttimes award an election to one candidate rather than another. If a party's poll is deemed a related expenditure on behalf of a candidate for the House, most or all of the expenditure limits may be exhausted. If a particular activity by an incumbent legislator is deemed an expenditure, rather than the performance of an official duty, that legislator may be barred from climbing into the family automobile and driving to the local town green to make a speech. If the activity is not an expenditure, the incumbent legislator may be allowed to engage freely in very helpful electoral activities that are denied to his or her opponent. If a candidate has a friend who is a lawyer and whose professional services are deemed not to be related expenditures, that candidate will have a great advantage over another whose friends are not lawyers, including the ability to bring litigation against the opponent that will exhaust the opponent's campaign funds. A ruling allowing lawyers to contribute professional services without counting them as contributions or related expenditures is hardly out of the question under Act 64, even though lawyers will often offer such services in the hope for special favors for themselves or their clients.
The Secretary of State's opinions allowing partners to make double donations -- once by the partnership, once by the individual partners -- and endorsing the legality of *pass-the-hat* fundraisers in which donors are allowed to remain anonymous and on the honor system as to how much they give are only the first examples of how Act 64 will come to mean what the Secretary of State and Vermont courts say it means. See 2001 Guide, supra.
Such untrammeled discretion cannot be squared with the First Amendment's requirements that speech be regulated according to spelled out and precise criteria. Equally important, it cannot be squared with increasing confidence in government. Only an organ of government can administer and interpret these laws. However, that interpretation consumes time when time is of the essence -- Appendix A is a letter dated December 3, 1999, responding to an inquiry dated October 8 -- and is susceptible to colorable claims of partisan influence.
In the last mayoral election in New York City, a candidate claimed to be eligible for public financing in a primary race, but his application was denied in a debatable ruling. See Mirta Ojito, Badillo Campaign Denied Matching Funds, N.Y. Times, Sept. 8, 2001, at B6; Mirta Ojito, Badillo Appeals Ruling on Campaign Fund Match, N.Y. Times, July 25, 2001, at B4. A Campaign Finance Board later overturned that ruling but only after the primary election was over. See A Bit Late for Race, Badillo Gets Funds, N.Y. Times, Apr. 12, 2002, at B3.
In Vermont, the purported author and lobbyist for Act 64 was denied public financing because his party took a poll that, if attributed to his candidacy, would be a related expenditure causing him to exceed the maximum contribution and expenditure limits for candidates eligible for public financing. See Ross Sneyd, Progressives' Poll Raises Question About Public Financing, Associated Press, Feb. 21, 2002 (describing Anthony Pollina's violation of the campaign finance law). The Democratic party then objected to his receipt of public financing. See Ross Sneyd, Democrats Ask that Pollina Be Disqualified from Public Financing, Associated Press, Feb. 28, 2002. The Secretary of State and the Attorney General, both Democrats, undertook an investigation into the activities of the candidate's party. See Ross Sneyd, Progressive Sue To Ensure Public Financing for Pollina, Associated Press, Mar. 12, 2002; see also Ross Sneyd, Pollina's Lawyer Says He Won't Cooperate with AG's Probe, Associated Press, Mar. 22, 2002. The candidate was then quoted as saying, quite understandably, "You have the Democratic Party asking the Democratic Attorney General based on an opinion of a Democratic secretary of state to investigate a Progressive Party candidate." Christopher Graff, Anthony Pollina's Campaign Demeans Legislators, Associated Press, Mar. 17, 2002. Neither the Badillo nor the Pollina affairs strike one as confidence-builders.
IV.CONCLUSION
In holding, with only one dissenting vote, that limits on candidate expenditures are unconstitutional, Buckley simply followed mainstream First Amendment jurisprudence that is applied to communicative activity of far less constitutional significance than political speech. See, e.g., Stanley, 394 U.S. at 567 (disallowing speculative impact of possessing obscene material on an asserted governmental interest as justification for statute restricting nonpolitical speech); Smith v. California, 361 U.S. 147, 151 (1959) (applying "stricter standards" in statutory scrutiny where statute has "a potentially inhibiting effect on speech"). That jurisprudence calls for scrutiny that does not take unquestioningly and at face value the claims of a law's proponents, Buckley, 424 U.S. at 40-41 (stating that "[b]efore examining the interests advanced" in support of legislation, "[c]lose examination of the specificity of the statutory limitation is required where, as here, the legislation imposes criminal penalties in an area permeated by First Amendment interests"), without actually examining the law, see id. at 41 ("The test if whether the language of [the statute] affords the '[p]recision of regulation [that] must be the touchstone in an area so closely touching our most precious freedoms.'" (quoting NAACP v. Button, 371 U.S. 415, 438 (1963))). That jurisprudence demands that a law restricting speech, including editorializing speech by the press, spell out what it permits and what it prohibits in intelligible detail, see Forsyth, 505 U.S. at 131, and not leave vast areas of discretion to those who must implement it. See Thomas, 122 S. Ct. at 780. That jurisprudence denies to government "the power to determine that spending to promote one's political views is wasteful, excessive, or unwise," Buckley, 424 U.S. at 57, and "to control . . . the quantity and range of debate on public issues in a political campaign." Id. Under that jurisprudence, Act 64's limits on expenditures and party financing cannot be upheld. Under that jurisprudence, forcing a reorganization of political parties that reduces the autonomy of local party committees for no articulated reason is unconstitutional.
Act 64 is said to be aimed at reducing the corrupt influence of special interests while enhancing the role of regular citizens. If one looks at what Act 64 says instead of what its proponents say about it, it is quite apparent that Act 64 substantially disables citizens from meaningful participation in party organizations, particularly at the local level and in grassroots activities on behalf of candidates, while organized economic interests retain the ability to engage in independent political advocacy, even if costly. In the beginning of this dissent, I quoted Justices Brandeis and Black on the dangers of high-minded assaults on liberty. Act 64 also exemplifies the wisdom of another, albeit less august, source, Walt Kelly: "We have met the enemy, and he is us."
FOOTNOTES
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[1]
The desire to challenge Buckley, even at the cost of living under a bad law, is exemplified by an astonishing statement of Vermont's Secretary of State. In transmitting to the Vermont legislature a review of the operation of Act 64, she cautioned against any amendment or repeal that would render the present litigation moot, even if the legislature thought the amendment or repeal necessary, because such an amendment or repeal would "frustrat[e] the express legislative goal of giving the Supreme Court an opportunity to reevaluate its decision in Buckley v. Valeo." See 2001 Memorandum, supra.
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[2]
Surprise at the actual provisions of campaign finance laws is as old as the laws themselves. A veteran civil-liberties lawyer tells the following story.
In the summer of 1972, three old-time dissenters came into the offices of the New York Civil Liberties Union in Manhattan and told an extraordinary story. In May of that year they and a few like-minded others had drafted and sponsored a two-page advertisement that appeared in The New York Times. The advertisement was sharply critical of Richard M. Nixon, the President of the United States. The ad claimed that President Nixon had authorized the secret bombing of Cambodia, in violation of international law, and should be impeached and removed from office. The ad set forth the text of an impeachment resolution that had been introduced in the House of Representatives and contained an "Honor Roll" listing eight House members who had co-sponsored that resolution. The advertisement cost approximately $17,850, and the ad hoc group called itself the National Committee for Impeachment. Before the ink on the ad was barely dry, the group was sued by the United States Justice Department for running the advertisement.
When Randolph Phillips, one of the sponsors of the ad, told this story to the lawyers at the New York Civil Liberties Union, we were incredulous. How could a group of citizens be sued by the Federal Government for publishing a criticism of the President of the United States? After all, this was 1972, and First Amendment law seemed at its most vigorous in the protections of public speech, one of the shining legacies of the Warren Court. What possible justification could the government have for suing this small group of protestors? We soon discovered the answer: campaign finance reform.
Joel M. Gora, No Law . . . Abridging, 24 Harv. J.L. & Pub. Pol'y 841, 842- 43 (2001) (reviewing Bradley A. Smith, Unfree Speech (2001) (footnote omitted). The law in question was the Federal Election Campaign Act of 1971, which defined a political committee as any group that spent more than $1,000 annually "for the purpose of influencing" -- language used in Act 64 -- a federal election and imposed various requirements on a committee's purchase of advertisements relating to a federal candidate. See United States v. Nat'l Comm. for Impeachment, 469 F.2d 1135, 1139 (2d Cir. 1972).
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[3]
Because other provisions of Act 64 strike at the heart of the democratic political system, I will note only in a footnote one egregiously overreaching provision. Act 64 requires that all political advertisements identify who paid for them, with an address, and which candidate is benefitted. The Secretary of State has sought an exemption from this requirement for buttons and lapel stickers. See 2001 Memorandum, supra. So far, she has been unsuccessful.
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[4]
The pertinent provision reads:
"Expenditure" means a payment, disbursement, distribution, advance, deposit, loan or gift of money or anything of value, paid or promised to be paid, for the purpose of influencing an election, advocating a position on a public question, or supporting or opposing one or more candidates.
Vt. Stat. Ann. tit. 17, § 2801(3).
--------------
[5]
The pertinent provisions reads:
"Candidate" means an individual who has taken affirmative action to become a candidate for state, county, local or legislative office in a primary, special, general or local election. An affirmative action shall include one or more of the following:
(A) accepting contributions or making expenditures totalling $500.00 or more; or
(B) filing the requisite petition for nomination under this title or being nominated by primary or caucus; or
(C) announcing that he seeks an elected position as a state, county or local officer or a position as representative or senator in the general assembly.
Vt. Stat. Ann. tit. 17, § 2801(1).
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[6]
The pertinent provision reads:
"Contribution" means a payment, distribution, advance, deposit, loan or gift of money or anything of value, paid or promised to be paid to a person for the purpose of influencing an election, advocating a position on a public question, or supporting or opposing one or more candidates in any election, but shall not include services provided without compensation by individuals volunteering their time on behalf of a candidate, political committee or political party. For purposes of this chapter, "contribution" shall not include a personal loan from a lending institution.
Vt. Stat. Ann. tit. 17, § 2801(2).
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[7]
The pertinent provision reads:
For the purposes of this section, a "related campaign expenditure made on the candidate's behalf" means any expenditure intended to promote the election of a specific candidate or group of candidates, or the defeat of an opposing candidate or group of candidates, if intentionally facilitated by, solicited by or approved by the candidate or the candidate's political committee.
Vt. Stat. Ann. tit. 17, § 2809(c).
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[8]
Section 2809(d) reads in full:
An expenditure made by a political party or by a political committee that recruits or endorses candidates, that primarily benefits six or fewer candidates who are associated with the political party or political committee making the expenditure, is presumed to be a related expenditure made on behalf of those candidates. An expenditure made by a political party or by a political committee that recruits or endorses candidates, that substantially benefits more than six candidates and facilitates party or political committee functions, voter turnout, platform promotion or organizational capacity shall not be presumed to be a related expenditure made on a candidate's behalf. In addition, an expenditure shall not be considered a "related campaign expenditure made on the candidate's behalf" if all of the following apply:
(1) The expenditures were made in connection with a campaign event whose purpose was to provide a group of voters with the opportunity to meet the candidate personally.
(2) The expenditures were made only for refreshments and related supplies that were consumed at that event.
(3) The amount of the expenditures for the event was less than $100.00.
Vt. Stat. Ann. tit. 17, § 2809(d).
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[9]
There is an exemption for certain expenses relating to "meet the candidate " events in Section 2809(d). See supra note 8. Because Section 2809(d) relates generally to activities of political parties and committees and the exemption for meet the candidate events begins with the words "In addition," the exemption may well have been intended to apply only to party- or committee-sponsored events. The Secretary of State has indicated that the Attorney General believes it to apply to all such events, however sponsored. See 1999 Memorandum, supra. The Secretary of State's position is unclear. In any event, the Secretary of State has opined that, even with the exemption, Act 64 unduly discourages such events because their costs involve non- exempted expenses. See id.
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[10]
There are some expenditure reports in the record but they are limited to the campaign's out-of-pocket expenditures made during the three-month period preceding the general election. Act 64's limits on expenditures, however, apply, as noted, to all expenditures made over a two-year period immediately following the last general election and ending with the next general election. See Vt. Stat. Ann. tit. 17, §§ 2801(9), 2805a(a).
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[11]
For example, in the 2000 election, the Democratic Party made cash contributions -- not including related expenditures -- in the amount of $28,000 to Elizabeth Ready for her campaign for Auditor of Accounts. See Campaign Finance Report of Elizabeth Ready, December 18, 2000.
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[12]
Some may doubt that Act 64 was intended to apply to media editorializing because they deem such editorializing to be constitutionally protected. However, paid advertisements have the same protection as editorials, see Sullivan, 376 U.S. at 266 (holding that "statements [that] would otherwise be constitutionally protected . . . do not forfeit that protection because they were published in the form of a paid advertisement"), and if you may constitutionally limit paid advertisements, as Act 64 does, you may limit unpaid endorsements. I, of course, believe that you cannot limit either.
The reason many campaign finance laws exempt the media is, therefore, not constitutional scruple, but the desire of proponents of regulation for media exposure and support. Such support might not be forthcoming if the media realized the extent to which the theory of such laws is a dagger easily aimed at freedom of the press.
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[13]
My colleagues note that one purpose of Act 64's expenditure limits was to reduce the use of short commercials by candidates but, in light of their disposition of this matter, do not reach the issue of whether this concern is sufficiently compelling to justify the legislation. In that regard, I note two things. First, that interest is not compelling. Indeed, the use of law to force candidates to select one medium of advocacy rather than another is an unconstitutional purpose and an additional ground for striking expenditure limits down. See Meyer, 486 U.S. at 424 ("The First Amendment protects [individuals'] right not only to advocate their cause but also to select what they believe to be the most effective means for so doing."). Second, Act 64 has increased reliance on the media. See 2001 Memorandum, supra; David Gram, Dems Needle Each Other on Spending in Treasurer's Race, Associated Press, May 29, 2002.
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[14]
It is also suggested that expenditure limits will reduce the time spent fundraising by candidates, leaving them time to confer with ordinary voters. There is no basis for this belief. Limiting the size of individual contributions necessarily increases the amount of time that must be spent raising a particular amount of money. Moreover, compliance with Act 64 alone will consume large amounts of a candidate's time in determining -- perhaps litigating -- whether particular activities constitute expenditures or related expenditures and what value should be attributed to particular in-kind expenditures. Expenditure limits also require candidates to monitor and control activities by supporters that involve related expenditures, which, if they exceed $50 with regard to a single source, must be totaled within the permissible expenditure and contribution limits. Act 64's provisions will actually force candidates to spend more time than ever on non-speech related activities.
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APPENDIX A
State of Vermont
Office of the Secretary of State
December 3, 1999
Representative Terry Bouricius
56 Booth Street
Burlington, VT 05401
Re: Your e-mail of October 8, 1999
Dear Representative Bouricius,
Please accept my apology for the delay in responding to your questions. The review of my proposed opinion took longer than anticipated. This letter is in response to the two questions which you raised in your e-mail. I will restate the questions to make sure we understand the fact patterns which I am addressing.
1. Can a political party which has no "candidates" as defined in 17 V.S.A. §2801(1) at the time the proposed poll is conducted, pay in excess of $500 for the conducting of a professional poll to seek potential voters opinions about selected potential candidates, both Progressive and otherwise, and share the poll results with potential candidates without the polling expense and associated political party activities triggering either a person named in the poll becoming a "candidate" as defined in §2801(1), nor disqualifying a person named in the poll from seeking public financing from the Vermont Campaign Fund, if a person named in the poll later decided to become a candidate?
The conducting of a poll by a political party to "test the waters" for various potential candidates will not trigger a "candidacy" for a person named in the poll even if more than $500 per potential candidate is expended by the party for the poll so long as only the general results are used for recruiting, media releases, or other generalized activities. The conducting of the poll itself falls within the types of activities generally pursued by a political party for its overall organization, planning, and strategy. The political party can conduct a poll and can make the general results or the poll public without triggering any candidacies. The party can use the results of the poll in a general way for recruiting candidates. (For example, telling John Jones that he was the favorite in a potential race with 3 other names, would be general information which can be used for recruiting.) However, as I will discuss below, the acceptance of detailed data and information from the poll by an individual will trigger a candidacy if the cost of the poll which is attributable on a pro rata basis to the provision of specific information and data to a particular candidate exceeds $500.
The Vermont campaign finance law does not specifically address polling activities and expenses. The definition of "candidate" in 17 V.S.A. §2801(1) states that "an affirmative action" of "(A) accepting contributions or making expenditures of over $500" will trigger a candidacy. The definition of contribution includes "a gift of money or anything of value." It is when an individual accepts the detailed data and information gained from the professional poll, that "a gift of anything of value" is accepted, and if the specific information given to an individual cost over $500 to produce on a pro rata basis, then a candidacy will be triggered.
Because it is the acceptance of the gift of detailed data from the poll, not the polling itself, which can trigger a "candidacy," the political party could conduct a professional poll at any time but wait until after February 15, 2000 to offer any detailed data or information from the poll to an individual in order to avoid the prohibitions of the Vermont campaign fund (public financing). The law states that if a person becomes a candidate before February 15 of the general election year, that person shall not be eligible for Vermont campaign finance grants, 17 V.S.A. §2853(a). Therefore, if before February 15th, a person accepts detailed data from a professional poll which is a gift of "anything of value" which cost over $500 to produce on a pro rata basis, the person has become a candidate by accepting a contribution totaling $500 or more, and will not be eligible for the Vermont campaign finance grants.
In summary, the political party can conduct polls and make the general results of the poll public without triggering any candidacies. If specific data and information is accepted by an individual which cost over $500 to produce on a pro rata basis, a candidacy is triggered. If the candidacy is triggered before February 15, 2000, the candidate will not be eligible for campaign finance grants. A political party and any individual considering accepting the detailed results of a poll should consult their own attorney to discuss specific fact patterns and how the law would be applied to those specific facts.
2. Can a political party spend in excess of $500 to arrange and sponsor dinners, other events, or party mailings for the purpose of educating party supporters or potential contributors about Vermont campaign finance grants and the need for "qualifying contributions"? Can the party make other preparations to assist a future candidate in gathering "qualifiers" for use after February 15, 2000?
Your question leaves room for many fact patterns so we will address three possible scenarios for such preparations, including dinners, events or mailings which we do not believe will trigger a candidacy and then discuss some additional considerations that might raise issues in the mind of an opposing candidate who could raise the issue using the process in 17 V.S.A.§2809(e).
A. If the proposed events are for the sole purpose of educating voters about the need for many small contributors in order to qualify for Vermont campaign finance grants, to explain the importance of party organization, or to discuss any other topics related to general campaigning, the expenditures clearly would not trigger a candidacy.
This letter represents my opinion on the issues which you have raised. You may seek your own counsel to advise you in these matters. Assistant Attorney General Michael McShane has reviewed this advisory opinion on behalf of the Office of the Attorney General and that office concurs with this opinion. If you have any questions please contact me at 828-2304 or kdewolfe@sec.state.vt.us.
Sincerely,
Kathleen S. DeWolfe
Director of Elections and Campaign Finance
cc: Michael McShane, AAG
Distribution List
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