Vt. Right to Life Comm., Inc. v. Sorrell

• Decision Date: 02 July 2014
• Docket Number: No. 12–2904–cv.,12–2904–cv.
• Citation: 758 F.3d 118
• Court: U.S. Court of Appeals — Second Circuit
• Parties: VERMONT RIGHT TO LIFE COMMITTEE, INC. and Vermont Right To Life Committee–Fund For Independent Political Expenditures, Plaintiffs–Appellants, v. William H. SORRELL, In His Official Capacity As Vermont Attorney General, David R. Fenster, Erica Marthage, Lisa Warren, T.J. Donovan, Vincent Illuzzi, James Hughes, David Miller, Joel Page, William Porter, Alan Franklin, Marc D. Brierre, Thomas Kelly, Tracy Shriver, and Robert Sand, In Their Official Capacities As Vermont State's Attorneys, and James C. Condos, In His Official Capacity As Secretary of State, Defendants–Appellees.

758 F.3d 118

VERMONT RIGHT TO LIFE COMMITTEE, INC. and Vermont Right To Life Committee–Fund For Independent Political Expenditures, Plaintiffs–Appellants,

v.William H. SORRELL, In His Official Capacity As Vermont Attorney General, David R. Fenster, Erica Marthage, Lisa Warren, T.J. Donovan, Vincent Illuzzi, James Hughes, David Miller, Joel Page, William Porter, Alan Franklin, Marc D. Brierre, Thomas Kelly, Tracy Shriver, and Robert Sand, In Their Official Capacities As Vermont State's Attorneys, and James C. Condos, In His Official Capacity As Secretary of State, Defendants–Appellees.^*

No. 12–2904–cv.

United States Court of Appeals, Second Circuit.

Argued: March 15, 2013.

Decided: July 2, 2014.

Randy Elf (James Bopp, Jr., on the brief), James Madison Center for Free Speech, Terre Haute, IN, for Vermont Right to Life Committee, Inc. and Vermont Right to Life Committee—Fund for Independent Political Expenditures.

Eve R. Jacobs–Carnahan (Megan J. Shafritz, on the brief), Assistant Attorneys General for the State of Vermont, Montpelier, VT, for William H. Sorrell, et al.

George Jepsen, Attorney General for the State of Connecticut, Hartford, CT; Maura Murphy Osborne, Assistant Attorney General for the State of Connecticut, Hartford, CT, for amici curiae States of CT, NY, HI, IA, KY, MN, MT, NM, and WA, in support of William H. Sorrell, et al.

J. Gerald Hebert, The Campaign Legal Center, Washington, D.C., for amici curiae The Campaign Legal Center, and Democracy 21, in support of William H. Sorrell, et al.

Before WESLEY and DRONEY, Circuit Judges, and BRICCETTI, Judge. ^**

DRONEY, Circuit Judge:

The two Plaintiffs–Appellants here are Vermont Right to Life Committee, Inc. (“VRLC”) and Vermont Right to Life Committee—Fund for Independent Political Expenditures (“VRLC–FIPE”). VRLC is a Vermont non-profit corporation and VRLC–FIPE is a political committee formed under Vermont law. Both advocate the “universal recognition of the sanctity of human life from conception through natural death.” J.A. 657, ECF No. 34. VRLC challenges three disclosure provisions of Vermont's elections laws, contending that they are unconstitutionally vague and violate VRLC's freedom of speech. First, VRLC challenges the statute requiring that “electioneering communications” identify their sponsor. Second, VRLC challenges the statute requiring that groups engaged in any “mass media activity” must submit certain reports to the Vermont Secretary of State and relevant candidates. Third, VRLC challenges Vermont's definition of “political committees” and its requirement that such committees submit campaign finance reports. VRLC–FIPE raises an as-applied challenge to Vermont's limit on contributions to political committees, contending that VRLC–FIPE is an independent-expenditure-only group and therefore the limit violates its freedom of speech. The Defendants–Appellees are various Vermont officials responsible for enforcing Vermont's elections laws. The district court (Sessions, J.) granted Defendants summary judgment on every claim. We AFFIRM the judgment of the district court.

BACKGROUND

I. Parties

VRLC is a Vermont corporation that files federal tax returns as a non-profit entity under 26 U.S.C. § 501(c)(4). VRLC–FIPE was formed by VRLC in 1999 as a registered Vermont political committee under the Vermont campaign finance statutes. VRLC–FIPE contends that it is an “independent expenditure committee” because the resolution of VRLC creating VRLC–FIPE provides that it may not “make monetary or in-kind contributions to candidates,” or “coordinate the content, timing or distribution of its communications or other activities with candidates or their campaigns.” J.A. 1125, ECF No. 36. A third entity, Vermont Right to Life Committee, Inc. Political Committee (“VRLC–PC”), also formed by VRLC, engages in campaign activities, including making direct contributions to pro-life political candidates. VRLC–PC is not a party in this action.

II. Statutory Scheme

This is not our first encounter with challenges to Vermont election laws by VRLC entities. In Vermont Right to Life Committee, Inc. v. Sorrell (“ VRLC I ”), 221 F.3d 376, 387, 389 (2d Cir.2000), we held that previous versions of Vermont's electioneering communication and mass media activity provisions were facially unconstitutional. We also rejected a facial challenge by VRLC–FIPE to Vermont's contribution limit for political committees in a separate lawsuit. Landell v. Sorrell, 382 F.3d 91, 139–40 (2d Cir.2004), rev'd in part sub nom. Randall v. Sorrell, 548 U.S. 230, 126 S.Ct. 2479, 165 L.Ed.2d 482 (2006).

In the instant case, VRLC has challenged the revised versions of the “electioneering communication,” “mass media activity,” and “political committee” provisions of Vermont's campaign finance laws. VRLC contends that the definitions of particular terms in those laws render the statutes unconstitutional under the First and Fourteenth Amendments. VRLC–FIPE challenges the contribution limits as applied to it. While this appeal was pending, Vermont repealed and replaced its campaign finance statutes. Act of Jan. 23, 2014, 2014 Vt. Acts & Resolves No. 90, Sec. 2, available at http:// www. leg. state. vt. us/ DOCS/ 2014/ ACTS/ ACT 090. PDF (codified at Vt. Stat. Ann. tit. 17, § 2901 et seq.). In deciding this appeal, this Court must apply the law now in effect. See Starbucks Corp. v. Wolfe's Borough Coffee, Inc., 477 F.3d 765, 766 (2d Cir.2007). The previous law, however, still governs VRLC–FIPE's as-applied challenge to Vermont's contribution limits because the new contribution limits do not take effect until January 1, 2015. Act of Jan. 23, 2014, 2014 Vt. Acts & Resolves No. 90, Sec. 8(a)(2).

We first set out the relevant statutory language.

A. Electioneering Communication

The definition of “electioneering communication” includes:

any communication that refers to a clearly identified candidate for office and that promotes or supports a candidate for that office or attacks or opposes a candidate for that office, regardless of whether the communication expressly advocates a vote for or against a candidate, including communications published in any newspaper or periodical or broadcast on radio or television or over the Internet or any public address system; placed on any billboards, outdoor facilities, buttons, or printed material attached to motor vehicles, window displays, posters, cards, pamphlets, leaflets, flyers, or other circulars; or contained in any direct mailing, robotic phone calls, or mass e-mails.

Vt. Stat. Ann. tit. 17, § 2901(6). With few exceptions, electioneering communications must identify “the name and mailing address of the person, candidate, political committee, or political party that paid for the communication.” Id. § 2972(a). Electioneering communications “paid for by or on behalf of a political committee or political party” must also identify certain contributors. Id. § 2972(c).

B. Mass Media Activity

Mass media activities include television commercials, radio commercials, mass mailings, literature drops, newspaper advertisements, robotic phone calls, and telephone banks, “which include[ ] the name or likeness of a clearly identified candidate for office.” Id. § 2901(11). A person engaging in certain “mass media activity” must file a report with the Vermont Secretary of State and send a copy to relevant candidates. Id. § 2971(a)(1). “The report shall identify the person who made the expenditure; the name of each candidate whose name or likeness was included in the activity; the amount and date of the expenditure; to whom it was paid; and the purpose of the expenditure.” Id. § 2971(b).

The disclosure requirements concerning electioneering communications and mass media activities apply to all individuals and entities engaging in such activities, not just political action committees.

C. Political Committee

A “political committee” (“PAC”) is defined as:

any formal or informal committee of two or more individuals or a corporation, labor organization, public interest group, or other entity, not including a political party, which accepts contributions of $1,000.00 or more and makes expenditures of $1,000.00 or more in any two-year general election cycle for the purpose of supporting or opposing one or more candidates, influencing an election, or advocating a position on a public question in any election, and includes an independent expenditure-only political committee.

Id. § 2901(13). The definition of “political committee” is based in part on the definitions of “contribution” and “expenditure.” Id. A “contribution” is “a payment, 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 in any election.” Id. § 2901(4).¹ As is relevant here, the term “election” refers only to efforts to elect officials within the state of Vermont, id. § 2901(5), and “public question” refers to “an issue that is before the voters for a binding decision,” id. § 2901(15). An “expenditure” is “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.” Id. § 2901(7).

Prior to the district court's decision below, a Vermont Superior Court considered a vagueness and overbreadth challenge to the phrase “influencing an election” in the definition of “political committee” in the former version of Vermont's campaign financestatutes.²Vermont v. Green Mountain Future, Civ. Div. No. 758–10–10 Wncv, slip op. at 12, 2011 WL 8472923 (Wash.Super.Ct. June 28, 2011), available at http:// www. vermont judiciary. org/ 20112015 Tcdecisioncvl/ 2011– 6– 30– 1. pdf. The Superior Court interpreted this phrase as “the equivalent of ...