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Campaign Reforms - Reporting and Disclosure Requirements:
Vermont and New Hampshire

Vermont's comprehensive campaign finance reform legislation, enacted in 1997, included new reporting and disclosure requirements for political advertisements. These provisions required political advertisements to identify their sponsors and imposed enhanced reporting requirements on mass media expenditures made within 30 days of an election. When the Vermont Right to Life Committee challenged the constitutionality of these provisions in 1997, the Institute intervened to help defend the provisions on behalf of a coalition including Vermont Public Interest Research Group, Common Cause/Vermont, the League of Women Voters of Vermont, Rural Vermont, and several legislators and candidates who supported the law. On their behalf, the Institute argued that full reporting and disclosure concerning political expenditures serves the state's compelling interests in promoting an informed electorate and enhancing public confidence in government.

In September 1998, the federal district court in Burlington, Vermont upheld the challenged provisions, rejecting the claims of the Vermont Right to Life Committee that the laws violated the First Amendment. The court ruled that the provisions should be narrowly interpreted to apply to political advertisements and mass media expenditures that "expressly advocate" the election or defeat of a candidate for office. This interpretation of the Vermont provisions, the court held, would avoid infringing First Amendment rights while permitting enhanced public disclosure of campaign spending. Vermont Right to Life Committee v. Sorrell, 19 F. Supp. 2d 204 (D. Vt. 1998).

On appeal, a divided panel of the U.S. Court of Appeals for the Second Circuit ruled on June 15, 2000, that the district court did not have the authority to adopt this narrowing interpretation of the reporting and disclosure laws, and that the laws were unconstitutional because on their face they appeared to regulate communications that might not constitute express advocacy of a candidate's election or defeat. One judge dissented, stating that in his view the Vermont Right to Life Committee had not demonstrated that they had suffered an injury from the challenged provisions and accordingly were not entitled to relief. Despite this setback, the majority decision left open the possibility that the constitutionality of the provisions could be upheld if a Vermont state court adopted the narrowing interpretation urged by the intervenors and the Vermont Attorney General. The ruling therefore gave the federal district court the authority to send the case to the Vermont Supreme Court for such an interpretation. Vermont Right to Life Committee v. Sorrell, 216 F.3d 264 (2d Cir. 2000).

Following this decision, the parties to the case agreed to a settlement that preserves the district court's original interpretation of the statutes, allowing the State of Vermont to require political advertisements to identify their sponsors and to regulate spending on "mass media" advertisements if the ads "expressly advocate the success or defeat of a candidate." This stipulated judgment, which provided the relief the Institute would have sought in further litigation before the Vermont Supreme Court, was entered by the district court on September 20, 2000, thus concluding the case. Although the litigation illustrates the difficult battles states face in attempting to enforce reasonable reporting and disclosure requirements under current First Amendment doctrine, the Institute's defense helped prevent the total invalidation of these reporting and disclosure requirements, preserving the Vermont public's right to know about sources of campaign spending. Vermont attorney Peter F. Welch of the firm of Welch, Graham and Manby served as co-counsel for defendant-intervenors with the Institute in this case.

NVRI's briefs in Vermont Right to Life Committee v. Sorrell.

Similar issues were presented in Stenson v. McLaughlin. In October 2000, Citizens for Life filed a lawsuit challenging New Hampshire's requirements for reporting and disclosure of political advertising. The Institute, representing the League of Women Voters of New Hampshire and the New Hampshire Public Interest Research Group as amici, filed a brief supporting the constitutionality of the reporting and disclosure measures. NVRI argued that reporting and disclosure are vital to deterring corruption and to protecting the effectiveness of New Hampshire's voluntary spending limits. Disclosure also gives citizens the information to make informed choices as voters.

As in the Vermont case, the federal court in New Hampshire ruled that the disclosure requirements swept too broadly by applying to communications that "expressly or implicitly" advocate the election or defeat of a candidate. Under the court's decision, issued in an unpublished opinion on August 24, 2001, the words "or implicitly" were severed from the statute, so that the New Hampshire law henceforth will regulate communications only if they "expressly" advocate the election or defeat of a candidate. Because of unfavorable appellate precedents on this issue in the First Circuit, the New Hampshire Attorney General elected not to appeal this ruling to the First Circuit. NVRI is monitoring similar challenges in other states, including California, to identify opportunities for favorable appellate consideration of meaningful reporting and disclosure requirements.

NVRI's brief in Stenson v. McLaughlin.
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