Legal Library

98-9325
In the
United States Court of Appeals
FOR THE SECOND CIRCUIT
Vermont Right To Life Committee, Inc.,

Plaintiff-Appellant,

v.

William H. Sorrell, in his official capacity as Vermont Attorney General; John T. Quinn, in his official capacity as Vermont State's Attorney; William Wright, in his capacity as Vermont State's Attorney; Dale O. Gray, in his-her official capacity as Vermont State's Attorney; Lauren Bowerman, in her official capacity as Vermont State's Attorney; Jan Paul, in his/her official capacity as Vermont State's Attorney; James Hughes, in his official capacity as Vermont State's Attorney; Linda P. Effel, in her official capacity as Vermont State's Attorney; Joel W. Page, in his official capacity as Vermont State's Attorney; James P. Mongeon, in his official capacity as Vermont State's Attorney; Terry Trono, in his/her official capacity as Vermont State's Attorney; Dan Davis, in his official capacity as Vermont State's Attorney; Patricia Zimmerman, in her official capacity as Vermont State's Attorney; James F. Milne, in his official capacity as Vermont Secretary of State; Edward W. Haase, in his official capacity as Vermont Commissioner of Taxes,

Defendant-Appellees,

Vermont Public Interest Research Group; Common Cause/Vermont; League of Women Voters of Vermont; Rural Vermont; Seth Bongartz; Cheryl Rivers; Marjorie Power

Intervenor-Defendant-Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF VERMONT - BURLINGTON DIVISION

BRIEF OF INTERVENOR-DEFENDANT-APPELLEES

Brenda Wright
John C. Bonifaz
National Voting Rights Institute
Lead Counsel for Intervenor-Defendant-Appellees
294 Washington Street, Suite 713
Boston, Massachusetts 02108
Phone (617) 368-9100

Peter F. Welch
Welch, Graham & Manby
Local Counsel for Intervenor-Defendant-Appellees
110 Main Street
Burlington, Vermont 05401-8451
Phone (802) 864-7207

STATEMENT OF JURISDICTION

Intervenor-defendant-appellees Vermont Public Interest Group, Inc. et. al. (hereafter, "defendant-intervenors") hereby supplement the Statement of Jurisdiction presented by Vermont Right to Life Committee, Inc. ("VRLC") by stating that the Court lacks subject-matter jurisdiction to adjudicate VRLC's claims because VRLC has suffered no injury-in-fact sufficient to support its standing to challenge 17 V.S.A. §§ 2881-2883.

STATEMENT OF THE CASE

VRLC's Statement of the Case is incomplete because of its failure to describe all of the parties to the case. On January 5, 1998, the district court granted leave to intervene to defendant-intervenors Vermont Public Interest Research Group ("VPRIG"), Common Cause/Vermont, League of Women Voters of Vermont ("LWV-VT"), Rural Vermont, Seth Bongartz, Senator Cheryl Rivers, and Marjorie Power. VPIRG, Common Cause, LWV-VT, and Rural Vermont are nonprofit, grassroots advocacy organizations whose combined memberships include thousands of Vermont voters. Each of these organizations actively participated in the Vermont Citizens' Coalition for Clean Elections that worked for two years to achieve passage of Act No. 64 (1997 Sess.), which includes the disclosure provisions challenged in this lawsuit.[1]

The defendant-intervenors also include three individuals. Seth Bongartz ran as a candidate for the Vermont Senate in 1996 under Vermont's voluntary spending limits. Marjorie Power is the publisher and primary author of a regular newsletter for the Green Mountain Chapter of the Older Women's League, which also supported enactment of the disclosure provisions challenged in this lawsuit. Senator Cheryl Rivers was the primary sponsor of the Act in the Vermont Senate.[2]

STATEMENT OF FACTS

The Statement of Facts presented by appellant Vermont Right to Life, Inc. ("VRLC") is incomplete. It contains no description of the facts adduced below that demonstrate how 17 V.S.A. §§ 2881-2883 further Vermont's compelling interests in promoting an informed electorate and enhancing public confidence in government. It also fails to describe the facts that undermine VRLC standing to bring this action.

The provisions at issue in this action, 17 V.S.A. §§ 2881-2883, are part of a comprehensive package of campaign finance reform measures enacted by the Vermont Legislature in 1997 as Act No. 64 (1997 Sess.). Among other things, the legislation provides for voluntary public financing of campaigns for governor and lieutenant governor, regulates political contributions and expenditures, and creates new reporting and disclosure requirements. The compelling governmental objectives served by Act 64 include preventing corruption in the political process, strengthening the public's confidence in the integrity of government, promoting compliance with contribution limits, and providing voters with information that will assist them in evaluating candidates for office and holding them accountable once elected. See Act No. 64 (1997 Sess.), § 1(a)(1)-(15) (Legislative Findings and Intent).

VRLC's lawsuit challenges the reporting and disclosure requirements applicable to political advertisements and expenditures for mass media activities, 17 V.S.A. §§ 2881-2883. These reporting and disclosure provisions were designed to address several pressing concerns that warranted action by the Vermont General Assembly.

First, disclosure and reporting requirements for political advertising help deter corruption and the appearance of corruption. Campaign spending to promote candidates for office tends to create political debts, and disclosure requirements allow the public at least to monitor the impact of money on the political process. The importance of disclosure to public confidence in government is confirmed by the results of survey research conducted in April 1998 among a demographically representative sample of Vermont registered voters, which found, among other things, that "Vermont voters overwhelmingly believe that persons or groups who pay for political advertisements are special interests who both expect to and do receive special treatment from the candidates they are supporting." A370, A372-373, Lake Declaration, ¶¶ 15, 19-20.

Second, the new reporting and disclosure requirements promote the effectiveness of Vermont's system of voluntary spending limits for political candidates. Vermont election law permits a candidate for state office to file an affidavit declaring that he or she will abide by specified spending limits. 17 V.S.A. § 2841.[3] Accepting such limits tends to promote the public's confidence that the candidate will not be beholden to large special interest contributors. Without disclosure and reporting requirements for third-party spending on political campaigns, however, this voluntary system can be undermined. Candidates who have agreed to abide by spending limits may be able to evade the intent of the law when substantial expenditures are made by other entities or organizations to promote the candidate's campaign. Further, for candidates who are determined to abide by the voluntary limits, it is important to know the extent of third-party spending so that the candidate can avoid any accusation of overspending the limits. A537-538, Pollina Declaration ("Dec.") at ¶¶ 5-7; A555-557, Bongartz Dec. at ¶¶ 4-7.

Third, the new disclosure and reporting provisions are necessary to help close loopholes that have weakened the efficacy of Vermont's previous disclosure requirements and contribution limits. Such problems were addressed in testimony before the Vermont House and Senate committees that deliberated on the campaign reform legislation enacted in 1997.[4] A Democratic political committee, Vermont Vote '96, was accused of making expenditures for radio advertisements on behalf of a number of state senate candidates without disclosing, in filings with the Secretary of State's office, the candidates on whose behalf the expenditures were made. The report of the outside counsel investigating this matter acknowledged that "[o]ne could certainly argue that one of the goals of the campaign finance reporting statute is to encourage full disclosure of moneys spent by and on candidates," but concluded that Vermont's disclosure laws as they existed in 1996 did not reach such spending.[5] The new disclosure and reporting provisions, particularly the reporting requirement covering mass media expenditures in 17 V.S.A. § 2883, help address such loopholes.

More broadly, Vermont's campaign reforms have the goal of protecting Vermont's electoral process against the abuses and excesses in the federal campaign system that have fostered increasing public cynicism toward government. At the federal level, evasion of contribution limits through soft-money spending on campaign ads disguised as "issue ads" has been the subject of extensive reporting and public criticism in recent years.[6] As one witness stated in testimony supporting campaign reform in Vermont, "I think we ought to begin the process of reforming the system so that we never reach the point that makes us embarrassed to read about ourselves in the newspaper."[7] Indeed, the defendant-intervenors' work on behalf of Vermont's reform legislation "was a direct response to increasing public cynicism about the integrity of the electoral system, and the threat such cynicism poses to a healthy democracy." A536-537, Pollina Declaration, ¶ 4.

Finally, the disclosure and reporting provisions serve the state's important interest in providing Vermonters with information that will assist them in evaluating political campaigns and making informed choices as voters. As found by the survey research described above, Vermonters believe that disclosure of the sponsors of political advertising will be helpful to them as voters. A370, A373-374, Lake Declaration at ¶¶ 15, 21. By overwhelming majorities, they believe that information about who is sponsoring political ads will help voters make more informed decisions on election day and will cause them to have more faith in the integrity of the election process in Vermont. Id. at A376, ¶ 26.[8]

A further description of VRLC and its activities also is necessary to permit a full understanding of the standing issues presented in this case. VRLC does not publish anonymous issue advocacy, but instead consistently identifies itself on its publications and other communications. See A180-181, Pl. Resp. to Interrogatories, Nos. 1, 4; District Court Opinion (hereafter, "Opinion") at A684. VRLC also does not publish its materials on behalf of candidates for office, nor permit them to exercise editorial control over the content of VRLC's publications. Opinion at A684; Beerworth Dep. at A216-218. Further, VRLC mails its newsletter and voter guide only to members of VRLC, not to the general public, and such materials thus do not constitute "mass media communications" under 17 V.S.A. § 2883. Opinion at A693; see Beerworth Dep. at A208. VRLC also was unable to establish that it has ever expended over $500 on any communication that would qualify as a "mass media" advertisement within 30 days of an election. See A238, Supp. Resp. to Interrogatories at ¶ 7 (stating VRLC spent $35 on pamphlets handed out at county fair).

ISSUES PRESENTED

I. Does VRLC lack standing to challenge 17 V.S.A. §§ 2881-2883?

II. Did the district court correctly determine that the disclosure and reporting provisions of 17 V.S.A. §§ 2881-2883 are narrowly tailored to further Vermont's compelling interests in deterring corruption and the appearance of corruption, promoting an informed electorate, and enhancing compliance with contribution and spending limits?

SUMMARY OF ARGUMENT

VRLC's lawsuit seeks redress for nonexistent injuries. Its challenge to the disclosure and reporting requirements of 17 V.S.A. §§ 2881-2883 fails for two independent reasons.

First, VRLC's activities are unaffected by the requirements of §§ 2881-2883, and VRLC therefore is unable to demonstrate any injury in fact sufficient to establish standing to challenge those provisions. VRLC identifies itself on all of its communications and does not publish advertisements on behalf of candidates, political parties, or political committees. VRLC therefore cannot challenge the disclosure requirements of §§ 2881-2882, which require only that political advertisements identify their authors and any candidate, political party or political committee on whose behalf they are published. VRLC also failed to establish that it publishes "mass media" communications covered by 17 V.S.A. § 2883; VRLC's publications do not fall under the restrictive definition of "mass media activities," and VRLC does not meet the $500 threshold for reporting under the statute. Under well-settled authority, VRLC's entirely subjective claim of "chill" allegedly caused by the challenged provisions does not constitute an adequate substitute for the injury in fact required to support a federal court's Article III jurisdiction. Laird v. Tatum, 408 U.S. 1, 13 (1972); Bordell v. General Elec. Co., 922 F.2d 1057, 1061 (2d Cir. 1991). VRLC's claims must be dismissed for lack of subject-matter jurisdiction.

Second, even assuming that §§ 2881-2883 required VRLC to disclose anything it is not already disclosing, those provisions are fully consistent with the requirements of the First Amendment. As the district court correctly found, the provisions are narrowly tailored to further Vermont's compelling interests in combating corruption and the appearance of corruption, promoting an informed electorate and enhancing public confidence in government. While permissible regulation of political advertisements is not limited to communications using a particular list of "magic words," as VRLC would have it, the provisions at issue here are narrowly drawn to avoid burdening protected issue advocacy. The district court committed no error in rejecting VRLC's strained effort to read those provisions in a manner that would support a facial overbreadth challenge.

Indeed, VRLC's appeal places it in the bizarre position of affirmatively asking the Court to adopt overbroad interpretations of the statutes at issue — interpretations eschewed by the primary proponents of the legislation as well as by Vermont's Attorney General — all for the purpose of supplying an actionable injury to plaintiff that would not otherwise exist. VRLC's lawsuit would thus accomplish precisely what the Supreme Court has warned against in cases such as Bd. of Trustees of State University of N.Y. v. Fox, 492 U.S. 469, 484-485 (1989): transforming the First Amendment overbreadth doctrine "from a necessary means of vindicating the plaintiff's right not to be bound by a statute that is unconstitutional into a means of mounting gratuitous wholesale attacks upon state and federal laws."

Accordingly, assuming that VRLC's claims are not rejected for lack of standing, the district court's judgment upholding the constitutionality of 17 V.S.A. §§ 2881-2883 should be affirmed.
 
 

ARGUMENT

I. VRLC LACKS STANDING TO CHALLENGE 17 V.S.A. §§ 2881-2883. The district court's decision rejecting VRLC's claims on the merits was entirely correct and should be upheld, as defendant-intervenors explain in Part II, infra. VRLC's claims founder for an even more fundamental reason, however: VRLC failed to carry its burden of demonstrating an injury-in-fact from the operation of 17 V.S.A. §§ 2881-2883, and therefore lacks standing to challenge those provisions. Because VRLC's lack of standing precludes federal court jurisdiction over its claims, defendant-intervenors address VRLC's lack of standing at the outset.[9]

The exercise of this Court's jurisdiction under Article III of the Constitution depends upon the presence of a plaintiff who has standing to assert his legal claims. To establish standing, a plaintiff must demonstrate, through competent evidence: (1) injury-in-fact — a concrete and particularized harm that is actual or imminent, not conjectural; (2) a causal connection between the injury and the conduct complained of, and (3) the likelihood that the injury will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992); United States v. Hays, 515 U.S. 737, 743 (1995). These requirements constitute the "irreducible constitutional minimum" necessary to invoke a federal court's Article III jurisdiction. Lujan, 504 U.S. at 560.

At the summary judgment stage, plaintiff may not rest on allegations concerning its standing, but must submit proof adequate to carry its burden of establishing this central element of its case. As stated in Lujan, 504 U.S. at 561:

Since they are not mere pleading requirements but rather an indispensable part of the plaintiff's case, each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation. The record demonstrates that VRLC failed to carry its burden of demonstrating an injury-in-fact sufficient to support its standing to challenge 17 V.S.A. §§ 2881-2883. A. Because VRLC's Activities Are in Full Compliance with the Operative Requirements of 17 V.S.A. §§ 2881-2882, VRLC Lacks Standing to Challenge those Provisions. Section 2881 defines political advertisements as communications that "expressly or implicitly advocates the success or defeat of a candidate for office." VRLC focussed its constitutional challenge on whether this definition is consistent with First Amendment principles. However, the operative requirements that apply to entities that pay for "political advertisements" are set forth in 17 V.S.A. § 2882. Section 2882 merely requires that such advertisements include the name and address of the person paying for it, and the name of the candidate, party or political committee by or on whose behalf the communication is published. As explained below, VRLC already identifies itself on all its communications, and does not publish its materials "on behalf of" a candidate, political party or political committee. Thus, regardless of whether VRLC's materials fall under the definition of "political advertisements" in § 2881, and regardless of the proper construction of that phrase, none of the publications or advertising materials identified by VRLC are affected by the operative requirements of § 2882. Accordingly, VRLC lacks standing to challenge the constitutionality of §§ 2881-2882.

VRLC cannot challenge the identification requirement set forth in § 2882 because VRLC specifically denies that it has ever published anonymous issue advocacy. See A180-181, Pl. Resp. to Interrogatories, Nos. 1, 4. Indeed, all of the newsletters and materials on which VRLC relies in support of its summary judgment motion contain the name and address of VRLC (or the local county chapter that published the information). See A164-176, Beerworth Aff., Exhibits A-D.

To support its claim of standing, therefore, VRLC is forced to argue that it is injured by § 2882's requirement that a political advertisement identify the candidate, party or political committee "by or on whose behalf" it is published. But VRLC's own factual admissions show that VRLC's newsletters would not be subject to this requirement. VRLC has admitted that it asserts its own editorial control over the content of its communications and does not print information at the request of candidates. Def. Statement of Undisputed Facts, ¶ ¶ 13-14; compare Plaintiff's Statement of Disputed Material Facts in Opposition (making no response to ¶¶ 13-14). Furthermore, as VRLC's Executive Director testified below, candidates for political office have no input on the contents of VRLC's newsletters. A216-217, Beerworth Dep.

Struggling mightily to bring its activities within the coverage of the statute, VRLC argued below that "on behalf of" must be construed in its broadest possible sense to refer to any publication that could be deemed "in the interest of" the candidate, even if not actively coordinated with the candidate. But even the dictionary cited by VRLC makes clear that the phrase "on behalf of" also commonly has the more restricted meaning of "as a representative of." Webster's Ninth New Collegiate Dictionary 141 (1984). See also, e.g., Random House College Dictionary, revised ed. (1988):

behalf: 1. in or on behalf of, as a representative of or a proxy for: On behalf of my colleagues, I thank you. 2. In or on one's behalf, in the interest or aid of someone: He interceded in my behalf. [boldface and italics original] In its discussion of VRLC's standing to challenge § 2881-2882, the district court accepted VRLC's broader construction through which "on behalf of" would mean "in the interest of." Opinion, A692. The district court, however, did not explain why it would presume the broader definition to have been the intent of the Vermont legislature, when the narrower construction identified by the Vermont Attorney General and the defendant-intervenors is fully supported in dictionary definitions. See Frisby v. Schultz, 487 U.S. 474 483 (1988) (accepting city attorney's construction of city ordinance in ruling on facial overbreadth challenge); Schwartz v. Romnes, 495 F.2d 844, 852 (2d Cir. 1974) (interpretation offered by state attorney general is entitled to weight).[10]

In the absence of any evidence that VRLC's expenditures are coordinated with candidates, political parties, or political committees, the designation requirement of § 2882 does not come into play. Thus, VRLC is not affected by § 2882's requirement of disclosing the candidate, party or political committee "by or on whose behalf" an advertisement is published, and is unable to satisfy any of the elements required to establish standing. Lujan, 504 U.S. at 560-61.

VRLC cannot overcome this hurdle merely by claiming that its speech is "chilled" by its own overbroad and incorrect reading of the statute. See Laird v. Tatum, 408 U.S. at 13 (when plaintiff's standing is challenged, "[a]llegations of a subjective 'chill' are not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm"); Bordell v. General Elec. Co., 922 F.2d at 1061 (to establish standing under the "chilling effect" doctrine, one "must proffer some objective evidence to substantiate his claim that the challenged conduct has deterred him from engaging in protected activity")(emphasis added). Here, any "chill" alleged by plaintiff is simply irrational in light of the non-applicability of § 2882 to plaintiff's activities. There is no injury-in-fact, no causation, no redressability, and no standing.

Finally, characterizing its challenge as a "facial" or "overbreadth" challenge does not overcome VRLC's standing problem. The First Amendment overbreadth doctrine comes into play when a statute could constitutionally be applied to the conduct of a party who is before the court, but would be unconstitutional in a substantial number of its applications to third parties not before the court. The party before the court then may assert the right not to be condemned by an unconstitutional law, even though the statute's regulation of the party's own conduct would be constitutional.[11] Here, a crucial link is clearly missing: the law in question does not condemn VRLC's conduct. VRLC is not, like a typical overbreadth plaintiff, claiming the right to be judged by a valid law; it is instead claiming the right to a federal court's construction of a law that does not condemn, judge, or bar VRLC's activities at all. If the overbreadth doctrine were read to confer standing in such circumstances, it would mean that any citizen of Vermont, regardless whether he personally wished to engage in conduct barred by the statute, could ask a federal court to declare the unconstitutionality of the statute because of the statute's potential impact on others. This would simply eliminate the requirement of an actual case or controversy as a prerequisite to federal jurisdiction whenever a complaint raises claims under the First Amendment. The overbreadth doctrine cannot be stretched that far. Bordell v. General Electric Co., 922 F.2d at 1061 (litigant cannot seek redress for possible chilling effect on third parties, unless litigant himself establishes injury in fact).

B. VRLC Does Not Engage in Any "Mass Media Communications" as Defined by 17 V.S.A. § 2883 and Therefore Lacks Standing to Challenge that Provision. Section 2883 contains reporting requirements for "mass media activities," which include "television commercials, radio commercials, mass mailings, literature drops and central telephone banks which include the name or likeness of a candidate for office." 17 V.S.A. § 2883. Expenditures for such mass media activities totaling $500 or more that are made within 30 days of an election must be reported within 24 hours to the Secretary of State and to the candidate whose name or image is used, along with information concerning the amount and source of the expenditure. Id.

VRLC's complaint alleged that it conducted "mass media" activities through its newsletters and voter guides. Complaint, A21, ¶¶ 15-16. That allegation did not survive the discovery process. VRLC's Executive Director explained at her deposition that VRLC does not distribute its newsletters and voter guides to the general public, but only to the membership of VRLC. A208, Beerworth Dep. Section 2883's focus on mass media activities is clearly designed to reach communications widely disseminated to the general public, and there is no reason to conclude it was intended to reach an organization's communications with its own membership.[12] Cf. United States v. Congress of Industrial Organizations, 335 U.S. 106 (1948) (expenditure regulation did not apply to weekly periodical distributed only to union members). VRLC has not challenged the district court's ruling (A693) that VRLC's membership mailings do not constitute "mass media" activities.

The only communication by VRLC which the district court found to qualify as a "mass media activity" is the pamphlet it handed out to persons who stopped by a Right-to-Life booth at the Chittenden County fair. A175-176, Beerworth Aff., Exhibit D; A230-231, Beerworth Dep. Even assuming such handouts meet the definition of a "mass media" communication, the district court's decision did not address the crucial question of whether VRLC spent more than $500 on such publications. In fact, VRLC's discovery responses show that printing these pamphlets cost only $35. See A238, Pl. Supp. Resp. to First Set of Interrogatories, ¶ 7. Such small-scale communications are not covered by §2883, which has a threshold of $500 before reporting requirements apply.[13]

It is not enough for the district court to determine, as it did in a footnote, that at certain county fairs in Vermont the distribution of pamphlets could reach a large enough number of people to be considered a "mass media" communication. Opinion at A693, n.5. The fact is that only a subset of "mass media communications" result in any reporting requirement: those on which an entity spends more than $500 within 30 days of an election. VRLC did not demonstrate any past expenditure meeting this threshold, nor did VRLC identify any concrete plan to increase its expenditures on such communications in the future. Any alleged "chill" to VRLC's speech is purely speculative and subjective. Accordingly, VRLC has not carried its burden of demonstrating its standing to sue under § 2883. See authorities cited at Point I.A., supra.

II. THE DISCLOSURE PROVISIONS OF 17 V.S.A. §§ 2881-2883 ARE NARROWLY TAILORED TO SERVE COMPELLING STATE INTERESTS AND ARE CONSTITUTIONAL.

A. The Disclosure Requirements of 17 V.S.A. §§ 2881-2882 Do Not Impede Protected Issue Advocacy.
The disclosure requirements of 17 V.S.A. §§ 2881-2882 are designed to provide voters with basic information about the source of political advertisements that "expressly or implicitly advocate the success or defeat of a candidate."

VRLC's attack on these provisions rests on a two-step argument, both parts of which are faulty. First, VRLC adopts an overly literal reading of the "express advocacy" test first set forth in Buckley v. Valeo, 424 U.S. 1 (1976). VRLC erroneously argues that the First Amendment places campaign advertising beyond the scope of any permissible state regulation — even the limited requirement of disclosure — so long as the advertisements do not employ one of the short list of phrases (or perfect synonyms thereof) set forth in the Buckley opinion as examples of express campaign advocacy. Second, VRLC perversely argues that the district court was required to construe §§ 2881-2882 in the broadest possible manner as infringing upon protected issue advocacy, and to reject all traditional rules for construction of Vermont statutes in the process — all for the purpose of setting up a constitutional challenge that is otherwise utterly unnecessary to protect VRLC's interests.

In making both of these arguments, VRLC misapprehends or ignores settled authority. The district court correctly rejected VRLC's strained effort to create a constitutional violation where none exists.

1. State Authority to Regulate Electoral Advocacy Is Not Limited to Communications that Contain the "Magic Words" Listed in Buckley. The Supreme Court has addressed the so-called "express advocacy" standard in two cases: Buckley v. Valeo and Federal Election Commission v. Massachusetts Citizens for Life, 479 U.S. 238 (1986) ("MCFL"). In Buckley, the Supreme Court adopted the so-called "express advocacy" standard as a means of judicially narrowing two provisions of the Federal Election Campaign Act of 1974 in response to a First Amendment challenge. The provisions sought to regulate expenditures "relative to a clearly identified candidate," 424 U.S. at 41, or made "for the purpose of . . . influencing" the election of candidates to federal office, 424 U.S. at 79.

The potential vagueness of these formulations in FECA prompted the Supreme Court to adopt a narrowing construction that would distinguish between electoral advocacy and protected discussion of public issues. The Buckley Court therefore held that a reporting requirement for independent expenditures over $100 should be construed to reach only "communications that expressly advocate the election or defeat of a clearly identified candidate." 424 U.S. at 80. This construction was consistent with the Court's observation that FECA was "directed precisely to that spending that is unambiguously related to the campaign of a particular federal candidate." 424 U.S. at 80 (emphasis added). In a footnote, the Court listed examples of "communications containing express words of advocacy of election or defeat," such as "'vote for,' 'elect,' 'support,' 'cast your ballot for,' 'Smith for Congress,' 'vote against,' 'defeat,' 'reject.'" 424 U.S. at 44 n.52.

The Court created the "express advocacy" test in Buckley, but had no occasion to apply it to a particular set of facts. The Court's 1986 decision in Federal Election Commission v. Massachusetts Citizens for Life ("MCFL") is the only case in which the Court has actually applied the test. In MCFL — whose holding VRLC does not describe — the Court did not apply the rigidly literal construction urged by plaintiff here, and indeed held that a pro-life voter guide constituted "express advocacy" within the meaning of Buckley even though its electoral message was "'marginally less direct' than 'Vote for Smith'", and even though the voter guide expressly stated that it was not intended as an endorsement of any candidate. 479 U.S. at 249.

In MCFL, the Court analyzed a "Special Edition" of a Massachusetts Right-to-Life newsletter which listed the candidates for each office and identified the candidates' position on "pro-life" issues. Without identifying any specific candidate in any specific district who should receive the reader's vote (or who should be targeted for defeat), the edition urged readers to "vote pro-life." 479 U.S. at 243-244. The newsletter, indeed, specifically disclaimed any intent to endorse any particular candidate, stating "This special election edition does not represent an endorsement of any particular candidate." 479 U.S. at 243.

In rejecting the contention that regulation of this publication would trench on protected issue advocacy, the Court stated:

The Edition cannot be regarded as a mere discussion of public issues that by their nature raise the names of certain politicians. Rather, it provides in effect an explicit directive: vote for these (named) candidates. The fact that this message is marginally less direct than "vote for Smith" does not change its essential nature. The Edition goes beyond issue discussion to express advocacy. The disclaimer of endorsement cannot negate this fact. 479 U.S. at 249 (emphasis added). The Supreme Court also pointed to other contextual factors distinguishing the newsletter from a pure discussion of public issues, such as the fact that MCFL printed far more copies of its election newsletter than it usually printed of its standard newsletter, and the fact that the election newsletter was printed prior to the September primary elections. 479 U.S. at 243. MCFL thus provides important confirmation that the "express advocacy" test of Buckley does not preclude a realistic evaluation of the electoral message conveyed by a communication, contrary to VRLC's insistence that any such evaluation is forbidden under the First Amendment.

To better understand the clear error in VRLC's facial attack on §§ 2881-2882, assume for the moment that the Vermont legislature had substituted the phrase "by their essential nature" for the word "implicitly" in the definition of a political advertisement. The definition would then apply to advertisements that "expressly or by their essential nature advocate the success or defeat of a candidate." According to VRLC's reasoning, this definition would be fatally overbroad because it is not limited to the precise words used in Buckley — even though the definition would be based on the very words used by the Supreme Court to explain why the newsletter in MCFL met the express advocacy test.

VRLC's rigid interpretation of the express advocacy standard, if accepted, would essentially bar meaningful regulation of any political advertisements. It would open the door to easy evasion of any such regulations so long as the sponsor of a political advertisement has access to a thesaurus providing substitutes for the words of advocacy listed in footnote 52 of Buckley. As the Ninth Circuit has pointed out:

The short list of words included in the Supreme Court's opinion in Buckley does not exhaust the capacity of the English language to expressly advocate the election or defeat of a candidate. A test requiring the magic words "elect," "support," etc., or their nearly perfect synonyms for a finding of express advocacy would preserve the First Amendment right of unfettered expression only at the expense of eviscerating the Federal Election Campaign Act. Federal Election Commission v. Furgatch, 807 F.2d 857, 863 (9th Cir.), cert. denied, 484 U.S. 850 (1987). Furgatch properly emphasized that the express advocacy test is restrictive and requires an electoral message that is "unmistakable and unambiguous, suggestive of only one plausible meaning," 807 F.2d at 864, but declined to make the test meaningless by treating it as a "magic words" test. This understanding of express advocacy — like the analysis of the Supreme Court in MCFL itself — demonstrates that the express advocacy standard can be applied in a manner broadly protective of First Amendment rights while still permitting some respect for the compelling governmental interest in reasonable campaign regulation.

Indeed, even cases that strike down particular applications of the express advocacy test do not treat Buckley as a "magic words" test. Federal Election Comm'n v. Central Long Island Tax Reform Immediately Comm., 616 F.2d 45 (2d Cir. 1980) (en banc) ("CLITRIM"), for example, was an as-applied challenge in which CLITRIM raised a First Amendment defense to an FEC enforcement action under FECA. The mailing at issue there urged support for candidates espousing anti-tax positions. In explaining why the particular mailing at issue there should not be considered express advocacy, this Court did not strictly confine itself to a search for the words listed in footnote 52 in Buckley, but also took note of the overall import of the mailing. For example, the Court pointed out that, in the mailing:

No mention is made of any particular federal election, the political affiliation of any congressman, the fact that he is or is not a candidate for elective office, or the name or views of any electoral opponent of any congressman [616 F.2d at 49]

[A] reader of the pamphlet could not find any indication, express or implied, of how TRIM would have him or her vote, without knowing the positions of the incumbent's opponent. There is no reference anywhere in the Bulletin to the congressman's party, to whether he is running for re-election, to the existence of an election or the act of voting in any election; nor is there anything approaching an unambiguous statement in favor of or against the election of Congressman Ambro. [616 F.2d at 45 (emphasis added)]

VRLC, however, relies heavily on the following sentence in CLITRIM as endorsing a rigidly literal understanding of Buckley's express advocacy test: the FEC would apparently have us read 'expressly advocating the election or defeat' to mean for the purpose, express or implied, of encouraging election or defeat. This would, by statutory interpretation, nullify the change in the statute ordered in Buckley v. Valeo and adopted by Congress in the 1976 amendments. [616 F. 2d at 53] Citing this language, VRLC argues that the use of the word "implicitly" in the Vermont statute alone is sufficient to require facial invalidation of §§ 2881-2882, without regard to the language of the statute as a whole, without considering the construction of the statute advanced by its proponents and the authorities charged with enforcing it, and without benefit of any example of an improper application of the statute in practice.

Such an application of CLITRIM's holding is unwarranted. It ignores most of this Court's discussion of why the particular mailing there did not meet the express advocacy test, while seizing on one word of the opinion — and one word of the Vermont statute — to require facial invalidation of the latter. The passage VRLC quotes was never intended to do such service. Compare Michael D. Leffel, Note, A More Sensible Approach to Regulating Independent Expenditures: Defending the Constitutionality of the FEC's New Express Advocacy Standard, 95 Mich. L. Rev. 686, 700 n. 84 (1996) (noting that holding of CLITRIM was based on factors such as mailer's failure to mention congressman's political party or existence of election).

The legal question presented here is whether Vermont's disclosure provision is subject to facial invalidation. Section 2881's definition does not rest on the detection of a subjective, implicit purpose of influencing an election. Instead, it applies only to a communication that "expressly or implicitly advocates the success or defeat of a candidate" (emphasis added). As the Vermont Attorney General points out, if a communication does not unquestionably and unambiguously advocate the success or defeat of a candidate, it is not covered advocacy under 17 V.S.A. § 2881-2882. Unlike the FEC in CLITRIM, the State here eschews a test tied merely to a speaker's subjective purpose. Thus, it is wide of the mark for VRLC to suggest that an isolated passage in CLITRIM, an as-applied challenge to a specific application of a federal statute, facially invalidates Vermont's very different disclosure provision.[14]

VRLC's own admissions in this case, moreover, have acknowledged that a communication need not contain an express directive such as "vote for" or "vote against" if the context otherwise is dispositive in demonstrating the electoral message of the communication. At oral argument before the district court, discussion focussed upon a portion of the FEC's definition of express advocacy under which a poster or bumper sticker containing solely the word "Mondale!" could be considered express advocacy. Even though the communication contains no literal words of electoral advocacy — and certainly none of the words listed in Buckley — VRLC's counsel acknowledged that such an application of the express advocacy test would be permissible:

THE COURT: The word "Mondale," exclamation point, that, apparently, is appropriate.

MR. BOPP: Yes, in the context of an election where he is running for office. That may be, for instance, a shorthand, or that may be — people adopt phrases, okay. They adopt phrases, and they put them on bumper stickers, which people know what they mean. They know what they mean, but the focus is on the words, not on, "Mondale is prochoice, what a terrible thing," where the focus on those words has nothing to do with the election, even though those words, spoken among a whole bunch of pro-lifers, the necessary implication, and, in fact, what they would probably go off and do is vote against him.

A668-669, Transcript of Hearing on Pending Motions, July 6, 1998 (emphasis added). How does one know that "Mondale!" is an expression of electoral advocacy? The answer is obvious: the advocacy is implicit from the context in which the candidate's name is used. Indeed, if VRLC readily characterizes the word "Mondale!" as "express" advocacy, VRLC clearly endorses grammatical license far greater than any needed to preserve a constitutional interpretation of the term "implicitly."[15]

VRLC's string citation to numerous court decisions that have "adhered to" the express advocacy test, Brief of Appellant at 9-10, is thus beside the point. The Ninth Circuit's decision in Furgatch, with which VRLC apparently disagrees,[16] also adheres to the express advocacy test, as did the Supreme Court's decision in MCFL — as does the State of Vermont and as did the district court in interpreting the Vermont disclosure provisions at issue here. As the Seventh Circuit cogently pointed out in addressing a facial challenge to a Wisconsin provision:

The question seemingly before the [Elections] Board . . . was not whether to apply Buckley — for every responsible official in Wisconsin believes that this is necessary — but what its approach means in practice. Appellate decisions such as Furgatch and Christian Action Network give different answers not because they disagree about whether Buckley and Massachusetts Citizens for Life "apply" but because these decisions do not give unambiguous answers to the myriad situations that arise. Wisconsin Right to Life v. Paradise, 138 F.3d 1183, 1186 (7th Cir. 1998). These insights explain precisely why VRLC's facial challenge is a completely inappropriate vehicle for challenging Vermont's disclosure provisions.[17] 2. The District Court Was Not Required to Read 17 V.S.A. § 2881 in the Overbroad Manner Urged by VRLC. VRLC argues that § 2881's language — "expressly or implicitly advocates the success or defeat of a candidate" — is not susceptible of any construction other than a construction that covers protected issue advocacy, and therefore must be struck down on its face. As already demonstrated, VRLC's arguments are flawed in the first instance because they assume an overly rigid interpretation of Buckley's express advocacy standard. See II.A.1., supra.

Further, VRLC's arguments are flawed for the independent reason that federal courts simply are not required to choose the broadest possible interpretation of a state statute when that statute has never been interpreted by a state court and when a perfectly plausible and narrower interpretation is available.

As the Supreme Court held in addressing the constitutionality of a Missouri statute: "Where fairly possible, courts should construe a statute to avoid a danger of unconstitutionality." Planned Parenthood Ass'n v. Ashcroft, 462 U.S. 476, 493 (1983) (upholding challenged Missouri statute based on narrowing construction). See also Frisby v. Schultz, 487 U.S. 474, 483 (1988) (rejecting facial First Amendment challenge to city ordinance, and holding that "[t]o the extent they endorsed a broad reading of the ordinance, the lower courts ran afoul of the well-established principle that statutes will be interpreted to avoid constitutional difficulties"); Virginia v. American Bookseller Ass'n, 484 U.S. 383, 397 (1988) ("in determining a facial challenge to a statute, if it be 'readily susceptible' to a narrowing construction that would make it constitutional, it will be upheld") (citations omitted).

Further, because the Vermont state courts have never construed §§ 2881-2882, it is the task of the federal court to "'carefully . . . predict how the highest court of the forum state would resolve the uncertainty.'" Bensmiller v. E.I. Dupont de Nemours & Co., 47 F.3d 79 (2d Cir. 1995) (narrowly construing Connecticut long-arm statute to avoid potential Fourteenth Amendment due process violation) (quoting Travelers Ins. Co. v. 633 Third Assocs., 14 F.3d 114, 119 (2d Cir. 1994). See alsoBrownsburg Area Patrons Affecting Change v. Baldwin, 137 F.3d 503, 507 (7th Cir. 1998) (in First Amendment challenge to state statute, federal court "must attempt to divine how the Supreme Court of Indiana would interpret the definition of a 'political action committee' as stated in the Indiana election statute.") When faced with a choice, the Vermont Supreme Court will assume that the legislature intended a constitutional result and construe Vermont statutes accordingly. In re J.S., 140 Vt. 458, 470, 438 A.2d 1125, 1130 (1981); see also Vermont v. Pray, 133 Vt. 537, 541, 346 A.2d 227, 229 (1975) ("A legislative enactment is entitled to the presumption of constitutionality unless such an interpretation is plainly foreclosed by the language itself").

Not only the Vermont Attorney General (charged by law with authority to enforce § 2881) and the leading proponents of the legislation (defendant-intervenors), but now the district court as well, have consistently maintained that § 2881 is not designed nor intended to infringe upon protected issue advocacy. As the state defendants explained at the outset of the litigation, "[u]nless the material advocates the success or defeat of a candidate, Section 2882 imposes no disclosure requirements." Defendants' Motion to Dismiss, Dkt. No. 24, at 12. Indeed, the legislative history of Act 64 shows that the political advertising provisions were amended during the legislative process to remove language that would have extended the disclosure requirements beyond candidate elections to include votes on public questions. Id. at 12-13.

VRLC's strained effort to support an overbreadth challenge depends upon first isolating the word "implicitly" from the remainder of § 2881, ignoring the remainder of the definition which focuses on communications that "advocate the success or defeat of a candidate." The next step in VRLC's argument requires VRLC to insist that the word "implicitly" as so isolated has one and only one possible meaning — namely, the opposite of "expressly." The argument then proceeds by asserting that since "implicitly" can only mean the opposite of "expressly," § 2881 can only be construed as an unconstitutional rejection of Buckley's express advocacy standard.

VRLC's argument founders at each step. First, it is inherently unreasonable to lift the adverb "implicitly" out of its context and ignore the requirement that any covered communication must "advocate the success or defeat of a candidate for office." This defies the cardinal principle that the meaning of a statute should be determined by examining the statute as a whole, not by arbitrarily isolating one word or phrase. See, e.g., Schwartz v. Romnes, 495 F.2d 844, 849 (2d Cir. 1974) (construing the word "political" in provision of New York election law with reference to statute as a whole and in manner that preserved provision's constitutionality against First Amendment challenge); Kay v. Austin, 621 F.2d 809, 810 (6th Cir. 1980) (noting that "[t]he word 'advocated' cannot be read in isolation from the complete phrase 'advocated to be a potential candidate'", and adopting construction that avoided constitutional violation).[18]

Second, even if the word "implicitly" were properly isolated from the remainder of the definition, VRLC cannot successfully argue that it is susceptible of only one meaning. The dictionary confirms that "implicitly" need not mean the opposite of "expressly." As the district court's opinion points out, one dictionary definition of "implicit" is "without doubt or reservation; unquestioning." App. A700-A701 (citing sources). A communication that "without doubt" or "unquestionably" advocates the election or defeat of a candidate for office may certainly be regulated under Buckley, which itself read FECA as "directed precisely to that spending that is unambiguously related to the campaign of a particular federal candidate." 424 U.S. at 80 (emphasis added). See also MCFL, 479 U.S. at 249 (electoral message "in effect" consisted of exhortation to vote for particular candidates despite express disclaimer that any endorsement was intended).[19]

VRLC objects to a passage in the district court's opinion indicating that the Vermont legislature may have been "guilty perhaps of redundancy" (A701) in using the term "implicitly" in the narrower sense identified by the Attorney General and defendant-intervenors. VRLC argues that terms in a statute ordinarily should not be construed as superfluous. VRLC places excessive weight on this isolated passage from the district court's opinion. As the district court recognized elsewhere, the Supreme Court's MCFL decision clearly eschewed a "magic words" interpretation of Buckley's express advocacy test. A697. The term "implicitly," even as narrowly construed, need not be considered wholly redundant to the extent it captures candidate advocacy such as that identified in MCFL — advocacy which "in effect" or in its "essential nature" consists of a directive to support or defeat a particular candidate. 479 U.S. at 249.

VRLC argues that any interpretation of § 2881 other than its own interpretation constitutes a forbidden "rewriting" of the statute and is thus beyond the power of the federal courts. As the discussion above demonstrates, however, VRLC simply has not demonstrated that its overbroad interpretation of § 2881 is mandated by either the language or logic of the statute as a whole. Nor is it terribly unusual for federal courts to uphold state statutes against constitutional challenges by accepting narrower interpretations in preference to broader ones. This Court did so in Schwartz v. Romnes, holding that a New York law prohibiting corporate contributions "for any political purpose whatsoever" should be narrowly construed so as not to apply to contributions to a referendum campaign. 495 F.2d at 848-852. In so doing, the Court noted that the informal interpretation of the New York Attorney General so construing the statute weighed in support of the narrower interpretation. Id. at 852.

Similarly, in Bensmiller v. E.I. Dupont de Nemours & Co., 47 F.3d 79 (2d Cir. 1995), this Court narrowly construed a Connecticut long-arm statute to avoid a potential conflict with constitutional due process requirements. Other circuits routinely do the same. See also, e.g., Excalibur Group, Inc. v. City of Minneapolis, 16 F.3d 1216, 1224 (8th Cir. 1997) (construing city ordinance in manner that avoided First Amendment violation), cert. denied, 118 S.Ct. 855 (1998); Sherman v. Community Consol. School Dist. 21, 980 F.2d 437, 442-443 (7th Cir. 1992) (interpreting state statute in manner that avoided First Amendment violation and noting that Supreme Court of Illinois prefers constructions that preserve rather than invalidate statutes), cert. denied, 508 U.S. 950 (1993); Stretton v. Disciplinary Bd. of the Supreme Court of Pennsylvania, 944 F.2d 137, 144 (3d Cir. 1991) (rejecting broad interpretation of state canon of judicial ethics in favor of narrower interpretation to "avoid constitutional difficulties" under First Amendment); White v. City of Norwalk, 900 F.2d 1421, 1424 (9th Cir. 1990) (construing city ordinance narrowly to avoid First Amendment violation); Dale Baker Oldsmobile, Inc. v. Fiat Motors of North Am., 794 F.2d 213, 220 (6th Cir. 1986) (construing state statute narrowly to avoid constitutional questions); Kay v. Austin, 621 F.2d 809 (6th Cir. 1980).[20]

VRLC relies on Dorman v. Satti, 862 F.2d 432, 435 (2d Cir. 1988), cert. denied, 490 U.S. 1099 (1989), which struck down as overbroad a state criminal statute prohibiting "harassment" of hunters. It does not appear from the opinion in Dorman, however, that the state offered any specific construction of the terms at issue that would obviate the constitutional problems; indeed, plaintiff Dorman had actually been arrested for simply talking to hunters (with the prosecution later being dismissed). In those circumstances it was clearly more difficult for the Court to conclude that the state would adhere to a constitutional construction of the statute, whose violations were punishable by imprisonment.[21] The circumstances are far different here, where the statute in question carries only civil penalties, is clearly subject to a constitutional construction, and has never been applied in an unconstitutional manner to VRLC or to anyone else.

3. The Disclosure Requirements Serve Vermont's Compelling Interests in Deterring Corruption and the Appearance of Corruption, Promoting an Informed Electorate, and Enhancing Compliance with Contribution and Spending Limits. VRLC's facial challenge completely disregards the compelling state interests supporting the Vermont's disclosure requirements for political advertisements. The strong justifications for these requirements are described in the Statement of Facts, supra at 43, and will only be summarized here.

First, as the Supreme Court recognized in Buckley v. Valeo, deterring corruption and the appearance of corruption is a vital governmental interest served by disclosure requirements:

[D]isclosure requirements deter actual corruption and avoid the appearance of corruption by exposing large contributions and expenditures to the light of publicity. This exposure may discourage those who would use money for improper purposes either before or after the election. A public armed with information about a candidate's most generous supporters is better able to detect any post-election special favors that may be given in return. . . . [424 U.S. at 67.] Spending that promotes candidates for office creates political debts. If spending is undisclosed or disguised, the public has no means of holding candidates accountable if they attempt to repay such debts through their actions as elected officials. Even if candidates refrain from such direct quid pro quo corruption, secrecy concerning the sources of spending on campaigns undermines public confidence in the integrity of government.

These insights are not merely the informed conclusions of the Vermont legislators who enacted Act 64 after lengthy consideration,[22] but are strongly supported by the results of survey research among registered Vermont voters in April 1998. That research strongly confirms that Vermonters view spending on political advertising as a source of quid pro quo corruption. Seventy-one percent of Vermonters believe that "people and groups who pay for advertisements that favor or oppose candidates in an election often get special treatment from the candidates once they are in office." A373, Lake Declaration, ¶ 20. Vermont voters in large numbers also said that the disclosure and reporting provisions would cause them to have more faith in the integrity of the election process in Vermont. Id. at ¶ 26, A376. They believe that the disclosure and reporting provisions will help make elected officials more responsive to the concerns of ordinary citizens and less beholden to groups who sponsor ads for them. These beliefs were consistent across party and demographic lines that typically divide voters on most other issues. Id. at ¶ 15, 19-20, 25 (A370, A372-373, A375-376).

Second, disclosure requirements serve the important interest of promoting a more informed electorate. As the Supreme Court recognized in Buckley:

[D]isclosure provides the electorate with information "as to where political campaign money comes from and how it is spent by the candidate" in order to aid the voters in evaluating those who seek federal office. It allows voters to place each candidate in the political spectrum more precisely than is often possible solely on the basis of party labels and campaign speeches. The sources of a candidate's financial support also alert the voter to the interests to which a candidate is most likely to be responsive and thus facilitate predictions of future performance in office. Buckley v. Valeo, 424 U.S. at 66-67. Again, the record demonstrates that the disclosure provisions of 17 V.S.A. §§ 2881-2882 will serve precisely these interests. In overwhelming numbers, Vermonters state that the information provided by the new disclosure and reporting provisions will help them make more informed decisions on election day. A376, Lake Dec. at ¶ 26; see also Statement of Facts, supra at 7-8 & n. 8.

Finally, Buckley recognized that reporting and disclosure requirements are an essential means of helping to prevent violations of contribution limits. 424 U.S. at 67-68. Disclosure and reporting requirements for third-party spending on political campaigns in Vermont are particularly important in promoting compliance with the voluntary spending caps that candidates may adopt under current law. See A555-556, Bongartz Dec. at ¶¶ 4-7; A538, Pollina Dec. at ¶ 7. The new disclosure provisions are also necessary to help close loopholes that have weakened the efficacy of Vermont's previous disclosure requirements and contribution limits. See Statement of Facts, supra at 5-6.

In sum, the record conclusively establishes that 17 V.S.A. §§ 2881-2882 are narrowly tailored to avoid infringing on protected issue advocacy, and serve compelling state interests. The district court's decision rejecting VRLC's facial challenge to those provisions should be affirmed.

B. The Mass Media Reporting Provisions Of 17 V.S.A. § 2883 Are Constitutional, Both on their Face and As Narrowly Construed by the District Court. VRLC's overbreadth challenge to 17 V.S.A. § 2883 must be rejected. The reporting requirements in § 2883 serve the same compelling interests described above with respect to §§ 2881-2881. See Point II.A.3., supra. Moreover, because § 2883 is extremely narrowly tailored to cover only large expenditures for carefully defined activities within the 30-day period closest to an election, § 2883 would be facially constitutional even without considering the narrowing construction adopted by the district court. Certainly, in conjunction with the district court's narrowing construction, the provision is fully constitutional. Defendant-intervenors address these points in order.

Section 2883's reporting requirement, on its face, is subject to four significant limitations that make the regulation narrowly tailored: (1) it is limited to expenditures for advertising only during the 30 days immediately prior to an election; (2) it is limited to expenditures for "mass media" activities; (3) it is limited to expenditures in amounts of $500 or more; and (4) it is limited to ads meeting all those criteria that also include the name or image of a candidate for elective office. Thus, Section 2883 reaches only a narrow category of expenditures that are highly unlikely to consist of anything other than candidate advocacy.

VRLC's charge of unconstitutionality simply overlooks the dramatic difference between a narrowly tailored measure such as this, and the reporting provision that was at issue in Buckley. Indeed, the very purpose of Buckley' s express advocacy test was to cure the vagueness problems associated with the FECA reporting requirement for expenditures made "for the purpose of . . . influencing" federal elections. 424 U.S. at 77. A narrowing construction was necessary because of the criminal penalties that could be imposed for a violation of that vague provision. Id. at 76-77.

Clearly, 17 V.S.A. § 2883 creates no constitutional vagueness problem. The expenditures required to be reported are defined narrowly and precisely, the time period to which the reporting applies is limited, and the expenditure threshold is set to reach contributions that are large in the context of Vermont politics. See A490, Gierzynski Aff. at ¶¶ 6-7 (describing analysis of Vermont campaign expenditures indicating that 68% of the candidates, parties and political committees in Vermont did not make mass media expenditures in excess of the $500 threshold in the last 30 days of the 1996 general election campaign, and that 91% did not make such expenditures in the last 30 days prior to the primary). Only the largest expenditures, which are most likely to be seen by the public as a substantial contribution to the candidate who is the subject of the expenditure, are covered by this provision. A facial overbreadth challenge to such a narrowly drawn provision is plainly unwarranted. See New York v. Ferber, 458 U.S. 747, 770-71 (1982) (where arguably impermissible applications of statute are dwarfed by legitimate reach of statute, First Amendment overbreadth challenge cannot be sustained).

Further, although VRLC's complaint was filed on the belief that violations of 17 V.S.A. §§ 2881-2883 carried criminal penalties (A23, Complaint at ¶ 25), this was simply a mistake. Only civil penalties are provided for violations of those provisions. 17 V.S.A. § 2806(b).

In sum, it is difficult to conceive of a more narrowly tailored reporting requirement for political spending. Accordingly, 17 V.S.A. § 2883 is constitutional on its face.

To the extent any doubt existed concerning the facial constitutionality of § 2883, the district court's narrowing construction of § 2883 removes any such doubt. Under that construction, the term "expenditure" is construed to apply only to spending that expressly advocates the election or defeat of a candidate — the same construction adopted by the Supreme Court in Buckley. Opinion at A704.

VRLC does not argue that § 2883 would be unconstitutional as construed by the district court, but instead argues solely that the district court lacked authority to adopt the narrowing construction. For the same reasons discussed above in connection with the district court's construction of § 2881-2882, VRLC's arguments are incorrect. See Point II.A.2., supra. In particular, there is nothing improper about looking to constructions of analogous federal laws in determining the proper interpretation of a state law provision. See, e.g., Schwartz v. Romnes, 495 F.2d at 852 (examining federal court construction of federal Corrupt Practices Act to determine proper interpretation of New York state campaign regulation). In addition, the district court's determination that § 2883 was not intended to burden issue advocacy is fully supported by the legislative history referred to above. See supra at 36.

CONCLUSION

For the foregoing reasons, and on the basis of the authorities cited, the judgment of the district court should be vacated and the case remanded with instructions to dismiss for lack of subject-matter jurisdiction. In the alternative, the judgment of the district court should be affirmed.

Respectfully submitted,

Brenda Wright
John C. Bonifaz
National Voting Rights Institute
294 Washington Street, Suite 713
Boston, Massachusetts 02108
Phone (617) 368-9100

Peter F. Welch
Welch, Graham & Manby
110 Main Street
Burlington, Vermont 05401-8451
Phone (802) 864-7207

Counsel for Defendant-Intervenor-Appellees

FOOTNOTES

[1] See A536-537, Pollina Declaration at ¶¶ 2-6; A543-544, Thompson Declaration at ¶¶ 2-5; A548, Schulyer Declaration at ¶¶ 4-5; A551-552, Taggart Declaration at ¶¶ 2-5.

[2] A555-556, Bongartz Declaration at ¶¶ 2-7; A559-560, Power Declaration at ¶¶ 2-4; A563-564, Rivers Declaration at ¶¶ 1-3.

[3] Act 64 also contains new provisions regulating expenditure limits that went into effect on November 4, 1998.  17 V.S.A. § 2805a.

[4] A585, Testimony of Ruth Stokes, Vermont Republican Party, before House Committee on Ways and Means, Hearings on Bill H.28 - Campaign Finance Reform, March 24, 1997, at 67.

[5] A576-577, First Report on Campaign Finance Inquiry Pursuant to Paragraph 5 of the Memorandum of Understanding, dated October 16, 1997, at 10-11.

[6] See, e.g., A476-477, Jill Abramson & Leslie Wayne, Democrats Used the State Parties to Bypass Limits, N. Y. Times, October 2, 1997; A428, Ira Chinoy, In Presidential Race, TV Ads Were Biggest '96 Cost by Far, Washington Post, March 31, 1997.  The New York Times article reported:

Investigators are reviewing the conversion of candidate advertising into issue ads through a few deft changes in wording and message, allowing them to be paid for with national committee money. . . . "The whole issue of the ads was the language and on ways to get around the law," [one] consultant said, adding "If you changed a few words, then you could produce them as D.N.C. ads and not as Clinton-Gore ads. It was the nuttiest thing."
[7] A598, Testimony of David Wilson, Wilson & White, before House Committee on Ways and Means, Hearings on Bill H.28 - Campaign Finance Reform, March 24, 1997.

[8] See also A559-560, Power Dec. (Older Women's League) at ¶¶ 2-4; A544, Thompson Dec. (Common Cause) at ¶ 6; A548, Schuyler Dec. (LWV-VT) at ¶¶ 4-5; A551-552, Taggart Dec. (Rural Vermont) at ¶¶ 2-5 (all describing importance of information on campaign spending in furthering their membership's understanding of public issues and maintaining accountability of public officials).

[9] Because VRLC's lack of standing deprives the court of subject-matter jurisdiction, this Court on appeal can remand within instructions to dismiss the complaint for lack of subject-matter jurisdiction even though the district court ruled against VRLC on other grounds.  See Bordell v. General Electric Co., 922 F.2d 1057, 1061 (2d Cir. 1991) (because plaintiff lacked standing, Court would vacate and remand with instructions to dismiss, without addressing other grounds relied upon by district court for entering judgment in favor of defendants).

[10] By contrast, when construing the meaning of "political advertisement" in § 2881, the district court properly rejected VRLC's overbroad construction.  Opinion, A26-28.  The caselaw governing federal courts' construction of state statutes that have not been authoritatively construed by state courts is discussed in more detail infra at II.A.2, in conjunction with intervenor-appellants' discussion of the merits of VRLC's challenge to §§ 2881-2882.

[11] See Renne v. Geary, 501 U.S. 312 (1991) ("In some First Amendment contexts, we have permitted litigants injured by a particular application of a statute to assert a facial challenge, one seeking invalidation of the statute because its application in other situations would be unconstitutional" (emphasis added)).

[12] This construction of the statute is consistent with commonly accepted usage.  One meaning of "mass," when used as an adjective (as in "mass mailing" or "mass media"), is "of, pertaining to, or affecting the masses; widespread:  mass hysteria."  RANDOM HOUSE COLLEGE DICTIONARY, revised ed. 1988.

[13] VRLC's discovery response glossed over the question of whether the pamphlets met the $500 threshold by lumping together the cost of the pamphlets with the cost of renting a booth at the county fair and the cost of a poster displayed at the booth.  There is no cogent argument, however, that either the rental of a booth at a county fair or the display of a poster is a "mass media" communication covered by the statute, which states that "mass media communications" include "television commercials, radio commercials, mass mailings, literature drops and central telephone banks which include the name or likeness of a candidate for office."  The district court made no finding that either a booth or poster would fall under this definition, identifying the pamphlet as the sole example of a "mass media" communication published by VRLC.  See also A231, Beerworth Dep. (acknowledging that allocation of 75% of costs of booth as an expenditure attributable to poster was made specifically for purposes of this litigation).

[14] Compare FEC v. Survival Educ. Fund, 65 F.3d 285 (2d Cir. 1995) (declining to resolve "difficult" issue of whether particular communication constituted express advocacy, id.i at 290 n.2, but holding disclosure could be required for solicitation letter under FECA even if communication did not constitute express advocacy, so long as solicitations "clearly indicat[e] that the contributions will be targeted to the election or defeat of a clearly identified candidate for federal office", id. at 295).

[15] Such examples of obvious electoral advocacy without the use of one of Buckley's express words can be multiplied endlessly: "Don't send Mondale to Washington."  "Dole in November!" "Reagan - Four More Years!"  None of these directives use the words "vote for" or "vote against," yet all are unquestionably express advocacy when used in the context of an election campaign.  See also id. at A667 ([Mr. Bopp:] "We haven't argued you can't use context; we have argued you have to look at the words.")

[16] VRLC's brief does not mention Furgatch.

[17] It bears emphasis that, of the circuit court decisions cited by VRLC at pp. 9-10, only the First Circuit decisions struck down particular regulations concerning express advocacy on their face.  See Faucher v. Federal Election Comm'n, 928 F.2d 468, 471-72 (1st Cir.), cert. denied, 502 U.S. 820 (1991) (striking down FEC regulation); Maine Right to Life Comm., Inc. v. FEC, 98 F.3d 1 (1st Cir. 1996), cert. denied, 118 S. Ct. 52 (1997) (striking down FEC regulation). The other cases have merely rejected particular applications of the express advocacy test in specific FEC enforcement actions, e.g., Federal Election Comm'n v. Christian Action Network, 110 F.3d 1049 (4th Cir. 1997), or have held that particular statutes do not apply to a particular entity, e.g., Brownsburg Area Patrons Affecting Change v. Baldwin, 137 F.3d 503 (7th Cir. 1998).  With full respect to the First Circuit, its highly restrictive interpretation of the express advocacy test effectively denies any meaningful weight to the critical governmental interest in promoting disclosure and preventing corruption and the appearance of corruption in electoral politics. That interpretation, of course, did not address the particular Vermont statutes at issue here and is not controlling in any event.

[18] VRLC cites Gormley v. Director, Conn. State Dept. of Probation, 632 F.2d 938, 945 n.5 (2d Cir. 1980), for the principle that federal courts are barred from construing a state statute so as to eliminate its overbreadth.  Brief for Appellants at 14.  VRLC misapprehends the holding of Gormley.  In Gormley, the Connecticut state courts had already rejected a constitutional challenge to the statute at issue, and this Court agreed that the statute in question was not unconstitutionally overbroad.  632 at 938 ("We agree with the district court and the state courts that it is not [overbroad]"); see also id. at 943 (noting that plaintiff's constitutional attack had been rejected by state courts).  Having made that determination, the majority rejected the suggestion of the dissenting judge that the federal court nevertheless should caution the Connecticut courts to construe the statute narrowly.  The Vermont provisions at issue here, however, have never been interpreted by the state courts, and Gormley is thus entirely inapposite.

[19] VRLC weakly argues that "the use of 'implicitly' as "unquestioning" is not grammatically appropriate in this context", Brief for Appellant at 19, but the assertion is mere ipse dixit.  VRLC cannot demand the extraordinary relief of striking down a state statute on its face, in all its applications, by arguing that one interpretation is more linguistically pleasing than another.

[20] VRLC appears to interpret Virginia Soc'y for Human Life, Inc. v. Caldwell, 152 F.3d 268 (4th Cir. 1998), as laying down an absolute rule that federal courts may never adopt narrowing constructions of state statutes.  If so, the Fourth Circuit would be in direct conflict with Supreme Court authority such as Frisby v. Schultz and Planned Parenthood v. Ashcroft and with Second Circuit decisions such as Schwartz v. Romnes and Bensmiller v. E.I. Dupont de Nemours, all of which embrace interpretations of state statutes that avoid a finding of unconstitutionality.  Virginia Soc'y, however, is also factually inapposite.  There, as the Fourth Circuit emphasized, the key statutory phrase of the challenged Virginia election law was the same phrase ("for the purpose of influencing") that the Buckley Court had found constitutionally infirm in FECA.  The Fourth Circuit decided that if the Virginia General Assembly had intended to enact the narrowing standard adopted in Buckley, it would not have used the specific FECA language that Buckley rejected.  The Vermont legislature, in stark contrast, did not use the broad pre-Buckley language of FECA, but adopted far more circumspect language that is much closer to the narrowing language used in Buckley itself.

[21] Even so, Dorman was a divided decision, with Judge Miner dissenting on the ground that case should have been certified to the state supreme court for a possible narrowing interpretation.  862 F.2d at 438-439.

[22] The legislative findings accompanying Act No. 64 (1997 Sess.) include the following:

(13) public confidence is eroded when substantial amounts of soft money are expended, particularly during the final days of the election.

(14) Identification of persons who publish political advertisements assists in enforcement of the contribution and expenditures limitations established by this act.

Act No. 64 (1997 Sess.) § 1(a)(9), (13), & (14) (Appendix I).