Vermont Right to Life Committee, Inc. v. Sorrell

• Decision Date: 09 September 1998
• Docket Number: No. 2:97-CV-286.,2:97-CV-286.
• Citation: 19 F.Supp.2d 204
• Parties: VERMONT RIGHT TO LIFE COMMITTEE, INC., Plaintiff, v. William H. SORRELL, in his official capacity as Vermont Attorney General; John T. Quinn, William Wright, Dale O. Gray, Lauren Bowerman, Jan Paul, James Hughes, Linda P. Effel, Joel W. Page, James D. McKnight, Jane Woodruff, James P. Mongeon, Terry Trono, Dan Davis, and Patricia Zimmerman, in their official capacities as Vermont State's Attorneys; James F. Milne, in his official capacity as Vermont Secretary of State; and Edward W. Haase, in his official capacity as Vermont Commissioner of Taxes, Defendants, and Vermont Public Interest Research Group, Common Cause/Vermont, League of Women Voters of Vermont, Rural Vermont, Seth Bongartz, Cheryl Rivers, and Marjorie Power, Defendant-Interveners.
• Court: U.S. District Court — District of Vermont

Page 204

19 F.Supp.2d 204

VERMONT RIGHT TO LIFE COMMITTEE, INC., Plaintiff, v. William H. SORRELL, in his official capacity as Vermont Attorney General; John T. Quinn, William Wright, Dale O. Gray, Lauren Bowerman, Jan Paul, James Hughes, Linda P. Effel, Joel W. Page, James D. McKnight, Jane Woodruff, James P. Mongeon, Terry Trono, Dan Davis, and Patricia Zimmerman, in their official capacities as Vermont State's Attorneys; James F. Milne, in his official capacity as Vermont Secretary of State; and Edward W. Haase, in his official capacity as Vermont Commissioner of Taxes, Defendants, and Vermont Public Interest Research Group, Common Cause/Vermont, League of Women Voters of Vermont, Rural Vermont, Seth Bongartz, Cheryl Rivers, and Marjorie Power, Defendant-Interveners.

No. 2:97-CV-286.

United States District Court, D. Vermont.

September 9, 1998.

COPYRIGHT MATERIAL OMITTED

Norman Charles Smith, Bauer, Anderson & Gravel, Burlington, VT, James Bopp, Jr., Richard E. Coleson, Glenn M. Willard, Bopp, Coleson & Bostrom, Terre Haute, IN, for Plaintiff.

Conrad Wesley Smith, Rebecca Mary Ellis, Vermont Attorney General's Office, Timothy Bert Tomasi, Office of Attorney General, Montpelier, VT, for Defendants.

Peter Francis Welch, Welch, Graham & Manby, White River Jct, VT, Stephen D. Whetstone, Inez H. Friedman, John R. Bauer, Testa, Hurwitz & Thibeault, Boston, MA, John C. Bonifaz, Brenda Wright, National Voting Rights Institute, Boston, MA, for Intervenor-Defendants.

OPINION AND ORDER

SESSIONS, District Judge.

In this civil action for declaratory and injunctive relief under 42 U.S.C. § 1983 and the First and Fourteenth Amendments to the United States Constitution, Vermont Right to Life Committee, Inc., ("VRLC") seeks a determination that Vermont's recently-enacted campaign finance reform statutes which regulate political advertising are unconstitutional facially and as applied. Before the Court are the Plaintiff's, Defendants' and Defendant-Interveners' motions for summary judgment.

BACKGROUND

"Never does the Constitution of the United States loom over the regulatory projects of [the legislative and executive branches] more conspicuously than when they seek to regulate activity protected by the First Amendment." Frank J. Sorauf, Politics, Experience and the First Amendment: the Case of American Campaign Finance Reform, 94 Colum. L.Rev. 1348, 1348 (1994). The quest for effective campaign finance reform measures which can withstand First Amendment scrutiny has been conducted over the past twenty-two years in the shadow of the United States Supreme Court's decision in Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976), which prohibited limits on campaign expenditures, approved limits on campaign contributions, approved reporting and disclosure requirements on campaign contributions, and approved public financing of presidential election campaigns. Whether Buckley's shadow is characterized as protective or obfuscatory has been widely debated. See, e.g., C. Edwin Baker, Campaign Expenditures and Free Speech, 33 Harv. C.R.-C.L. L.Rev. 1, 1-2 (1998); David A. Strauss, Corruption, Equality and Campaign Finance Reform, 94 Colum. L.Rev. 1369, 1369 (1994); Ralph K. Winter, The History and Theory of Buckley v. Valeo, 6 J.L. & Pol'y 93, 94 (1997). What is uncontested is the increasing use, post-Buckley, of "soft money" (money raised by political parties free of contribution limits) to engage in "issue advocacy" (communication which primarily promotes ideas or policies as distinguished from "express advocacy" which advocates the election or defeat of a candidate), and the efforts of campaign finance reformers at the state and federal level to regulate this activity consistent with the First Amendment.

Too many commentators on the need for campaign finance reform decry the Buckley decision, and proclaim that clean elections and free speech are on a collision course. Witness, for example, House minority leader Richard A. Gephardt's testimony in support of a Constitutional amendment mandating campaign finance reform: "we have two important values in direct conflict: free speech ... and our desires for healthy campaigns in a healthy democracy. As the [Buckley] court has framed it, you cannot have both." Free Speech and Campaign Finance Reform: Hearing Before the Subcomm. on the Constitution of the House Comm. on the Judiciary, 105th Cong. (1997) (remarks of Richard A. Gephardt, House minority leader), paraphrased in Joel M. Gora, Campaign Finance Reform: Still Searching Today for a Better Way, 6 J.L. & Pol'y 137, 175 (1997). On the contrary, a healthy democracy cannot survive without both: the rights to participation in the election process and to freedom of expression and association are the bedrock of our society. In the words of Justice Hugo Black, writing for the Supreme Court: "No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights ... are illusory if the right to vote is undermined." Wesberry v. Sanders, 376 U.S. 1, 17, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964). In the words of Justice Louis Brandeis: "freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; ... public discussion is a political duty; and ... this should be a fundamental principle of the American government." Whitney v. California, 274 U.S. 357, 375, 47 S.Ct. 641, 71 L.Ed. 1095 (1927) (concurring opinion, joined by Holmes, J.). James Madison, in his report to the General Assembly of Virginia in 1798 condemning the Sedition Act, stressed the interdependency of these rights:

Let it be recollected, lastly, that the right of electing the members of the government constitutes more particularly the essence of a free and responsible government. The value and efficacy of this right depends on the knowledge of the comparative merits and demerits of the candidates for public trust, and on the equal freedom, consequently, of examining and discussing these merits of the candidates respectively.

4 Elliot's Debates on the Federal Constitution 575 (1876), quoted in New York Times Co. v. Sullivan, 376 U.S. 254, 275 n. 15, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964).

During the 1997 legislative session, in response to concerns about the use of soft money and the increasing cost of state and local election campaigns, the Vermont General Assembly enacted Act 64, a comprehensive campaign finance reform measure. Among other provisions, Act 64 included disclosure requirements for political advertisements, codified at Vt. Stat. Ann. tit. 17, §§ 2881-82 (Supp.1997),¹ and reporting requirements for mass media activities, codified at Vt. Stat. Ann. tit. 17, § 2883 (Supp.1997).² Political advertisements must contain the name and address of the person who paid for the advertisement, and designate the name of the candidate, party or political committee by or on whose behalf it is published. § 2882. "Political advertisement" is defined as "any communication ... which expressly or implicitly advocates the success or defeat of a candidate." § 2881. Mass media activities are certain types of communications which include the name or likeness of a candidate for office. § 2883. Any person who spends $500.00 or more within 30 days of an election must report such expenditures to the secretary of state and to the candidate whose name or likeness is included within 24 hours of making the expenditure. Id. The report must include the identity of the person who made the expenditure, the name of the candidate, the amount expended, the purpose, date, and to whom it was paid. Id.; Vt. Stat. Ann. tit. 17, § 2803(a); (b) (Supp.1997). A person who violates these statutory provisions is subject to a civil penalty of up to $10,000. Vt. Stat. Ann. tit. 17, § 2806(b) (Supp.1997).

Plaintiff VRLC is a statewide, non-profit Vermont corporation, with its principal office in Montpelier, and local chapters throughout the state. It has approximately 4,500 members. Its stated purpose is to achieve universal recognition and respect for the sanctity of human life from conception through natural death through activities such as public education and legislative lobbying. It publishes the positions of candidates for public office on issues it considers important through newsletters, voter guides, posters and pamphlets. VRLC gathers information independently of any candidate, party or political committee, and it exerts editorial control over the contents of its communications. It includes its name and address on all of its publications, and does not publish anonymous communications. VRLC has a political committee which maintains a separate bank account and is responsible for endorsing specific candidates and for publishing these endorsements. The political committee and its activities are not involved in this lawsuit.

In its Verified Complaint, VRLC announced that it publishes issue advocacy, that its issue advocacy appears to require it to carry an identifying disclaimer pursuant to Section 2882, that it wishes to continue to publish issue advocacy but without the disclaimer, and that it will not do so without complying. VRLC also announced that it has expended more than $500.00 in issue advocacy through mass media activity, that it wishes to continue to do so without reporting its expenditures, and that it will not engage in such mass media activity without complying with the statutory reporting requirements. The State has not advised VRLC that it is or may be in violation of the reporting and disclosure requirements, and has represented that it considers VRLC to be in compliance or that its activities are not covered by the statutes in question. Defs.' Mot. to Dismiss at 17-19 (paper 27); Defs.' Reply Mem. at 6 (paper 43); Defs.' Mem. in Supp. of Mot. for Summ. J. at 4-7 (paper 66); Defs.' Reply Mem. at 1-5 (paper 85).

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