382 F.3d 91 (2nd Cir. 2002), 00-9159, Landell v. Sorrell

Docket Nº:Docket Nos. 00-9159(L), 00-9180(CON), 00-9231(XAP), 00-9139(XAP), 00-9240(XAP).
Citation:382 F.3d 91
Party Name:Marcella LANDELL, Plaintiff-Appellee, Donald R. Brunelle, Vermont Right to Life Committee, Inc., Political Committee, Neil Randall, George Kuusela, Steve Howard, Jeffrey A. Nelson, John Patch, Vermont Libertarian Party, Vermont Republican State Committee and Vermont Right to Life Committee-Fund for Independent Political Expenditures, Plaintiffs-App
Case Date:August 07, 2002
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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382 F.3d 91 (2nd Cir. 2002)

Marcella LANDELL, Plaintiff-Appellee, Donald R. Brunelle, Vermont Right to Life Committee, Inc., Political Committee, Neil Randall, George Kuusela, Steve Howard, Jeffrey A. Nelson, John Patch, Vermont Libertarian Party, Vermont Republican State Committee and Vermont Right to Life Committee-Fund for Independent Political Expenditures, Plaintiffs-Appellees-Cross-Appellants,

v.

William H. SORRELL, John T. Quinn, William Wright, Dale O. Gray, Lauren Bowerman, Vincent Illuzzi, James Hughes, George E. Rice, Joel W. Page, James D. McNight, Keith W. Flynn, James P. Mongeon, Terry Trono, Dan Davis, Robert L. Sand and Deborah L. Markowitz, Defendants-Appellants-Cross-Appellees,

Vermont Public Interest Research Group, League of Women Voters of Vermont, Rural Vermont, Vermont Older Women's League, Vermont Alliance of Conservation Voters, Mike Fiorillo, Marion Grey, Phil Hoff, Frank Huard, Karen Kitzmiller, Marion Milne, Daryl Pillsbury, Elizabeth Ready, Nancy Rice, Cheryl Rivers and Maria Thompson, Intervenors-Defendants-Appellants-Cross-Appellees,

Docket Nos. 00-9159(L), 00-9180(CON), 00-9231(XAP), 00-9139(XAP), 00-9240(XAP).

United States Court of Appeals, Second Circuit

August 7, 2002

Argued: May 7, 2001.

Withdrawn: Oct. 3, 2002.

Amended Aug. 18, 2004.

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Timothy B. Tomasi, Assistant Attorney General, Montpelier, VT (Richard A. Johnson, Jr., Christopher G. Jernigan, Assistant Attorneys General, Office of the Attorney General, William H. Sorrell, Attorney General, Montpelier, VT, of counsel), for Defendants-Appellants-Cross-Appellees William H. Sorrell, John T. Quinn, William Wright, Dale O. Gray, Lauren Bowerman, Vincent Illuzzi, James Hughes, George E. Rice, Joel W. Page, James D. McNight, Keith W. Flynn, James P. Mongeon, Terry Trono, Dan Davis, Robert L. Sand, and Deborah Markowitz.

Brenda Wright, National Voting Rights Institute, Boston, MA (Bonita Tenneriello, John C. Bonifaz, Gregory G. Luke, National Voting Rights Institute, Boston, MA; Peter F. Welch, Welch, Graham & Mamby, Burlington, VT; of counsel), for Intervenors-Defendants-Appellants-Cross-Appellees Vermont Public Interest Research Group, the League of Women Voters of Vermont, Rural Vermont, Vermont Older Women's League, Vermont Alliance of Conservation Voters, Mike Fiorillo, Marion Grey, Phil Hoff, Frank Huard, Karen Kitzmiller, Marion Milne, Daryl Pillsbury, Elizabeth Ready, Nancy Rice, Cheryl Rivers, and Maria Thompson.

Mitchell L. Pearl, Langrock Sperry & Wool, LLP, Middlebury, VT (Peter F. Langrock, Langrock Sperry & Wool, LLP, Middlebury, VT; Joshua R. Diamond, Diamond & Robinson, Montpelier, VT; David Putter, Montpelier, VT; Mark J. Lopez, American Civil Liberties Union, New York, NY; American Civil Liberties Foundation of Vermont; of counsel), for Plaintiffs-Appellees-Cross-Appellants Neil Randall, George Kuusela, Steve Howard, Jeffrey A. Nelson, John Patch, and Vermont Libertarian Party.

James Bopp, Jr., Bopp, Coleson & Bostrom, Terre Haute, IN (James R. Mason, III, Eric R. Bohnet, Aaron Kirkpatrick, Bopp, Coleson & Bostrom, Terre Haute, IN, of counsel), for Plaintiffs-Appellees-Cross-Appellants Donald R. Brunelle, Vermont Right to Life Committee, Inc., Vermont Republican State Committee, Vermont Right to Life Committee-Fund for Independent Political Expenditures, and Marcella Landell.

Jane R. Rosenberg, Assistant Attorney General, Hartford, CT (Eliot D. Prescott,

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Assistant Attorney General, Richard Blumenthal, Attorney General, Hartford, CT, of counsel), for Amici States of Colorado, Connecticut, Maryland, New York, and Oklahoma.

Gillian E. Metzger, Brennan Center for Justice at New York University School of Law, New York, N.Y. (Nancy Northup, Brennan Center for Justice at New York University School of Law, New York, NY, of counsel), for Amicus Brennan Center for Justice at New York University School of Law.

Before: WINTER, STRAUB, and POOLER, Circuit Judges.

STRAUB, Circuit Judge.

During his 1997 inaugural address, Vermont's Governor offered the Vermont General Assembly a moment of telling candor: "As I've said before, money does buy access and we're kidding ourselves and Vermonters if we deny it. Let us do away with the current system." The General Assembly responded by promulgating Act 64, a comprehensive campaign finance reform package. The testimony and statements made during the General Assembly's debate demonstrated that Vermont lawmakers were concerned with more than just the quid pro quo corruption that preoccupies much of campaign finance reform. Typically, this fear of corruption has involved the danger that politicians will sell their votes for campaign funds. The Vermont debate highlighted something else that public officials can, and apparently do, offer in exchange for funds: time and access. The General Assembly, together with the State's chief executive, concluded that Vermont needed limitations governing its campaigns for state office with respect to both expenditures and contributions.

This appeal arises from a consolidated suit which brings a First Amendment challenge to key sections of Act 64. The plaintiffs have argued that Vermont's reform violates the First Amendment guarantee of free speech and association in the political realm. At the conclusion of a bench trial, the District Court enjoined the enforcement of Act 64's limitations on expenditures, gifts by non-resident contributors, and contributions by political parties to candidates. The District Court upheld all of Act 64's other contribution limitations, including limits of between $200 and $400 on contributions to candidates by individuals and political action committees, limits of $2000 on contributions to political parties and political action committees, and regulations treating coordinated expenditures by third parties as contributions to a candidate.

All parties have appealed that decision. We are therefore asked to determine whether the First Amendment rights of free speech and political association forbid each of the challenged provisions, including (1) Vermont's campaign expenditure limitations; (2) the contribution limits applied to candidates; (3) the contribution limits applied to political parties and political associations; (4) the limit on contributions by non-residents; and (5) the regulation of coordinated expenditures by political parties.

After issuance of the original opinion in this case, see Landell v. Sorrell, Nos. 00-9159(L), 00-9180(CON), 00-9231(XAP), 00-9139(XAP), and 00-9240(XAP) (2d Cir. Aug. 7, 2002) (slip op.), in which we upheld in large part both Act 64's contributions limits and its expenditure limits, plaintiffs filed a petition for rehearing in banc. We withdrew our original opinion on October 3, 2002, pending further proceedings. Landell v. Sorrell, Nos. 00-9159(L), 00-9180(CON), 00-9231(XAP), 00-9139(XAP), and 00-9240 (XAP), 2002 WL 31268493 (2d Cir. Oct. 3, 2002). Having reconsidered

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our holding and taking serious note of the views presented during the rehearing process, we now issue this amended opinion, modifying our holding only with regard to Act 64's expenditure limits. In both instances, our colleague, Judge Winter, has dissented.

As we did in our original opinion, we hold today that the Supreme Court, in Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (per curiam), did not rule campaign expenditure limits to be per se unconstitutional, but left the door ajar for narrowly tailored spending limits that secure clearly identified and appropriately documented compelling governmental interests. 1 In applying the narrow tailoring test, we hold that the State has established that the challenged expenditure limits are supported by its compelling interests in safeguarding Vermont's democratic process from (1) the corruptive influence of excessive and unbridled fundraising 2 and (2) the effect that perpetual fundraising has on the time of candidates and elected officials. The evidence considered by the District Court and the Vermont legislature demonstrates that, absent expenditure limitations, the fundraising practices in Vermont will continue to impair the accessibility to elected officials which is essential to any democratic political system. The race for campaign funds has compelled public officials to give preferred access to contributors, essentially requiring candidates to sell their time in order to raise campaign funds. In addition, we affirm the District Court's finding that effective campaigns can be run under Act 64's limits.

Nevertheless, although we reaffirm these aspects of our original holding, we now conclude that a remand is necessary for further fact-finding on an aspect of the narrow tailoring inquiry that was not fully considered by the District Court: the crucial question of whether Act 64's expenditure limits provision was the "least restrictive means" of furthering the State's compelling anti-corruption and time-protection interests—or whether there are other less restrictive mechanisms available that might be as effective in satisfying the compelling interests established by Vermont.

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On remand, the District Court should also consider another question that it did not reach in its original examination of this case—whether treating related expenditures as candidate expenditures is constitutional. We therefore leave in place the District Court's injunction, while remanding for further proceedings.

As for the remaining issues regarding Act 64's contribution limitations, our decision remains the same in all material respects. We hold that all of Vermont's provisions limiting the size of contributions survive scrutiny, including the treatment of a third party's related expenditures as contributions and the application of contribution...

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