Legal Library

Civil Action No. 2:97CV286


Vermont Right to Life Committee, Inc.


William H. Sorrell, et al.,


Vermont Public Interest Research Group, Inc., et. al.,


Defendant-Intervenors Vermont Public Interest Research Group ("VPIRG"), Common Cause/Vermont, League of Women Voters of Vermont, Rural Vermont, Seth Bongartz, Senator Cheryl Rivers, and Marjorie Power (collectively, the "defendant-intervenors"), submit this memorandum of law in opposition to the motion of plaintiff Vermont Right to Life Committee, Inc. ("VRLC") for summary judgment.


A. Facts Concerning Vermont’s Interests in the Disclosure and Reporting Required by 17 V.S.A. §§ 2881-2883

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 last year 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); see infra at 2-7.

Plaintiff’s lawsuit challenges the reporting and disclosure requirements applicable to political advertisements and expenditures for mass media activities, 17 V.S.A. §§ 2881-2883.(1) 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. Spending that benefits 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,(2) but are strongly supported by the results of survey research among registered Vermont voters concerning the impact of disclosure requirements on voters’ confidence in government and the electoral process in Vermont.

That survey research, conducted in April 1998 among a demographically representative sample of Vermont registered voters by the firm of Lake Sosin Snell Perry and Associates, found 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." Lake Declaration, ¶¶ 15, 19-20 (Appendix G).(3) Vermonters also believe that disclosure and reporting requirements will actually help decrease the possibility of corruption in government. Id. at ¶¶ 15, 25. 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 ¶ 26. Vermont voters also believe that the disclosure and reporting provisions will make elected officials more responsive to the concerns of ordinary citizens and less beholden to groups who sponsor ads for them. Id. These beliefs were consistent across party and demographic lines that typically divide voters on most other issues. Id. at ¶ 15, 19-20, 25.

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.(4) 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 that 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. Declaration of Anthony Pollina, VPIRG, at ¶¶ (Appendix 1); Declaration of Seth Bongartz, ¶¶ 4-7 (Appendix 5).

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.(5) 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. An outside counsel who investigated these complaints determined that Vermont election laws as they existed in 1996 had not been violated because they did not specifically require disclosure of candidates on whose behalf such expenditures were made.(6) The report of the outside counsel 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 did not reach such spending. Id. at 11. 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.(7) 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."(8) 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." Pollina Declaration, ¶ 4 (Appendix 1).(9)

Finally, the disclosure and reporting provisions serve the 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. Lake Declaration, at ¶¶ 15, 21. In overwhelming numbers, voters state that the information provided by the new disclosure and reporting provisions will help them make more informed decisions on election day. Id. at ¶ 26. Even among the minority of voters who believe that sponsors of political ads are simply groups of concerned citizens who do not receive special treatment from elected officials, two thirds said they would nevertheless find it helpful to know who is sponsoring such ads. Id. at ¶ 21. Clearly, the new disclosure and reporting provisions reflect the value Vermonters place on being well informed about the political process.

B. Facts Concerning Plaintiff VRLC

Plaintiff VRLC does not publish anonymous communications. Plaintiff’s Response to First Set of Interrogatories, ¶¶ 1, 4 (Appendix A). VRLC publishes a regular newsletter which sometimes includes a voter guide identifying the views of candidates on legislation supported by VRLC. Its newsletter and voter guides always include VRLC’s name and address. Beerworth Affidavit, Exhibits A-D. VRLC’s newsletters and communications are not produced in coordination with candidates for office. Beerworth deposition at 27-28 (Appendix B). Because VRLC already includes its name and address in its newsletters and other communications, and does not produce its materials at the request of or on behalf of candidates, political parties, or political committees, VRLC does not need to alter its communications to comply with the new provisions regarding "political advertising" in §§ 2881-2882.(10)

VRLC, in addition, does not engage in mass media advertising. Plaintiff’s discovery responses reveal that the newsletters plaintiff previously identified as "mass media" activities are in fact not distributed to the general public. Instead, those newsletters are mailed only to members of VRLC. Beerworth Deposition at 19 (Appendix A). Communications between an organization and its own membership are not covered by Vermont’s reporting requirement for "mass media" expenditures. The only other materials identified by VRLC as constituting mass media advertising are a poster and handouts that were displayed at a county fair. Neither of these constitutes "mass media" advertising.

VRLC is a registered lobbyist in Vermont. Complaint, ¶ ¶ 18-21. VRLC also has a Political Committee that is familiar with and complies with the filing requirements applicable to political committees in Vermont, including required reports of its campaign-related contributions and expenditures. Beerworth Deposition, at 7, 13 (Appendix B). The Political Committee mails candidate endorsements to identified pro-life voters in Vermont, including the VRLC membership that also receives VRLC’s newsletter. Beerworth Deposition at 8-9, 22 (Appendix B). VRLC is not contending in its lawsuit that the activities of its Political Committee are improperly burdened or impeded by §§ 2881-2883.



As demonstrated in defendant-intervenors’ separate Memorandum in Support of Defendant-Intervenors’ Motion for Summary Judgment, plaintiff VRLC has suffered no injury-in-fact adequate to confer standing with respect to Counts 1 - 4 of its complaint, and has presented no case or controversy adequate to support federal jurisdiction with respect to Count 2. Plaintiff’s motion for summary judgment must be denied on this ground alone. To avoid duplication, defendant-intervenors do not repeat here the discussion establishing plaintiff’s lack of standing, but respectfully refer the Court to their separate Memorandum of Law in support of that motion.


Even if, contrary to facts of record, VRLC published anonymous political advertisements and had standing to challenge 17 V.S.A. §§ 2881-2882, VRLC would not be entitled to summary judgment on its claim of facial unconstitutionality. Those disclosure provisions are a narrowly tailored means of serving Vermont’s compelling interests. VRLC’s arguments do not remotely justify the drastic remedy of facially invalidating these important provisions.

A. Facial Challenges to State Statutes Are Disfavored, Particularly When a Plaintiff Brings a Pre-Enforcement Challenge.

Facial challenges to state statutes, because of their severe interference with state enactments, are employed by courts "sparingly and only as a last resort." Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973). Such challenges are "an exception to our traditional rules of practice." Id. at 614. To support a facial overbreadth challenge, "the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep." Id. at 415.

Further, the Supreme Court repeatedly has expressed reservations about addressing First Amendment claims in a factual vacuum. See Renne v. Geary, 501 U.S. 312 (1991) (questioning "the propriety of resolving the facial constitutionality of [a statute] without first addressing its application to a particular set of facts"); Bd. of Trustees of State University of N.Y. v. Fox, 492 U.S. 469, 484-485 (1989) ("It is not the usual judicial practice, . . .nor do we consider it generally desirable, to proceed to an overbreadth issue unnecessarily — that is, before it is determined that the statute would be valid as applied. Such a course would convert use of the 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").

Thus, in demanding summary judgment on its claim of facial unconstitutionality -- before Vermont’s disclosure provisions have been the subject of any enforcement action or concrete application, either to plaintiff’s conduct or that of anyone else -- plaintiff VRLC shoulders a heavy burden. As explained below, that burden has not been discharged.

B. Plaintiff’s "Magic Words" Interpretation of the Express Advocacy Test in Buckley v. Valeo Would Make Campaign Regulations Unenforceable and Is Not Required by Buckley.

Assuming VRLC’s standing, the merits of plaintiff’s challenge to 17 V.S.A. §§ 2881-2883 turn on whether state regulation of disclosures for political advertising is limited solely to advertisements using one of the so-called "magic words" listed in footnote 52 in Buckley v. Valeo, 424 U.S. 1, 44 n.52 (1976). 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. As applied to a reporting requirement for independent expenditures over $100, the Court construed the requirement only to reach "communications that expressly advocate the election or defeat of a clearly identified candidate." 424 U.S. at 80. In establishing this test, the Court referred back to footnote 52 of its opinion construing a companion provision of FECA, which explained that this construction would restrict the application of the statute to "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.’" Id. at 44 n.52. The purpose of the express advocacy test was to distinguish between advertisements that advocate the election or defeat of a candidate and communications that require greater protection because they constitute discussion of issues. Id. at 79.

Plaintiff insists that Buckley’s express advocacy test forbids any regulation of advertisements that avoid using one of the phrases in the Buckley footnote, no matter how clear and unambiguous is the electoral advocacy of the communication. Plaintiff’s Memorandum of Law in Support of Motion for Summary Judgment, at 7-8. This strict interpretation of the express advocacy standard has accurately been described as the "magic words" test. Federal Election Commission v. Furgatch, 807 F.2d 857, 863 (9th Cir. 1987), cert. denied, 484 U.S. 850 (1987) (rejecting "magic words" interpretation of Buckley).

It takes little imagination to understand that VRLC’s interpretation of the express advocacy standard, if accepted, essentially bars meaningful regulation of any political advertisements. The "magic words" test opens 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 in the Buckley footnote. As the Ninth Circuit has pointed out in rejecting that interpretation:

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. "Independent" campaign spenders working on behalf of candidates could remain just beyond the reach of the Act by avoiding certain key words while conveying a message this is unmistakably directed to the election or defeat of a named candidate.
807 F.2d at 863.(11)

The Furgatch court recognized 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. It set out the following standards for distinguishing express advocacy from protected issue advocacy:

First, even if it is not presented in the clearest, most explicit language, speech is "express" for present purposes if its message is unmistakable and unambiguous, suggestive of only one plausible meaning. Second, speech may only be termed ‘advocacy’ if it presents a clear plea for action, and thus speech that is merely informative is not covered by the Act. Finally, it must be clear what action is advocated. Speech cannot be "express advocacy of the election or defeat of a clearly identified candidate" when reasonable minds could differ as to whether it encourages a vote for or against a candidate or encourages the reader to take some other kind of action.
807 F.2d at 867. The balanced approach of the Ninth Circuit in Furgatch is fully consistent with Buckley’s observation that FECA’s provisions were "directed precisely to that spending that is unambiguously related to the campaign of a particular federal candidate." 424 U.S. at 80 (emphasis added).

The First Circuit, as plaintiff points out, has adopted the bright-line approach plaintiff urges, at least in interpreting provisions of FECA. Faucher v. Federal Election Comm’n, 928 F.2d 468, 471-72 (1st Cir.), cert. denied, 502 U.S. 820 (1991).(12) With full respect to that Court, its 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 is not controlling here and should not be followed.

Further, in the only case since Buckley in which the Supreme Court has applied the express advocacy test, the Court did not apply the rigidly literal construction urged by plaintiff here. In Federal Election Comm’n v. Massachusetts Citizens for Life v. FEC, 479 U.S. 238 (1986), the Supreme Court focused on the "essential nature" of the message, not only the specific terms used, in holding that Massachusetts Citizens for Life had engaged in express advocacy within the meaning of Buckley in one of its publications. 479 U.S. at 249. The Court found the communication at issue in MCLF to constitute express advocacy, not issue advocacy, even though the publication stated that it was not making an "endorsement of any particular candidate," and instead simply identified the voting records of candidates and urged citizens to "vote pro-life." 479 U.S. at 243. The Supreme Court’s rulings on express advocacy thus do not support the plaintiff’s mechanistic interpretation.

C. 17 V.S.A. §§ 2881-2882 as Properly Construed, Are Narrowly Tailored to Regulate Only Candidate Advocacy and Are Constitutional.

Vermont’s disclosure requirement for political advertisements that "expressly or implicitly advocate the success or defeat of a candidate" is consistent with the requirements of the First Amendment. As already explained by the State in its Motion to Dismiss, 17 V.S.A. § 2881 does not regulate issue advocacy. "Unless the material advocates the success or defeat of a candidate, Section 2882 imposes no disclosure requirements." Defendants’ Motion to Dismiss, at 12. Indeed, the legislative history of Act 64 shows that the political advertising provisions were amended to remove language that would have extended the disclosure requirements beyond candidate elections to include votes on public questions. Motion to Dismiss at 12-13.

The plaintiff argues that this Court is without authority to interpret a state statute in a manner that will preserve its constitutionality. That is incorrect. 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). See also 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); Brownsburg Area Patrons Affecting Change v. Baldwin, 137 F.3d 503, 1998 U.S. App. LEXIS 2862, at 14 (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.") A federal court may also give consideration to the interpretation placed on the state statute by the state authorities charged with enforcing it — here, the State defendants. Grayned v. City of Rockford, 408 U.S. 104, 110 (1972).

Further, in assessing the constitutionality of a state statute that has not been construed by the state courts, federal courts should apply the rules of construction that the state court would apply. Brownsburg Area Patrons Affecting Change v. Baldwin, 1998 U.S. App. LEXIS 2862 at 15-16. 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"). This Court should apply the same rules of construction here.

Sections 2881-2882 are properly read to require disclosure of the sponsors of political advertisements that unambiguously advocate the success or defeat of a candidate, either explicitly or implicitly. While Vermont’s disclosure requirements thus do not embrace the rigid literalism of plaintiff’s "magic words" standard for express advocacy, they are fully consistent with the First Amendment. See Furgatch, 807 F.2d at 867 (communication need not include words in footnote 52 of Buckley, provided that its message is "unmistakable and unambiguous, suggestive of only one plausible meaning").

Indeed, even cases that strike down particular applications of issue advocacy regulation 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. In explaining why the particular mailing at issue there should not be considered express advocacy, the Second Circuit did not strictly confine itself to a search for the eight magic phrases 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)]

Plaintiff, however, relies heavily on the following sentence in CLITRIM as endorsing a 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]

The Second Circuit, of course, was reacting to the fact that the original statutory language of FECA as reviewed by the Buckley Court covered expenditures made "for the purpose of . . . influencing" the election of candidates to federal office. 616 F.2d at 52. It was in that context of FECA’s history that the Second Circuit rejected a return to a standard tied merely to an implied purpose of influencing an election.

But the statute at issue here is different, and VRLC therefore errs in contending that CLITRIM requires facial invalidation of 17 V.S.A. § 2881-2882. 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." Thus, it is not implicit purpose, but explicit or implicit advocacy of a candidate’s election or defeat, that triggers the requirement. As the Vermont Attorney General points out, if a communication does not unambiguously advocate the success or defeat of a candidate, it is not candidate advocacy under 17 V.S.A. § 2881. Thus, it is wide of the mark for plaintiff to suggest that the isolated passage it cites in CLITRIM, an as-applied challenge to a specific application of a federal statute, facially invalidates Vermont’s very different disclosure provision. Compare FEC v. Survival Educ. Fund, 65 F.3d 285, 295 (2d Cir. 1995) (holding disclosure could be required for solicitation letter under FECA even if communication does not constitute express advocacy, if solicitations clearly indicat[e] that the contributions will be targeted to the election or defeat of a clearly identified candidate for federal office).

Finally, plaintiff’s reliance on McIntyre v. Ohio Election Comm’n., 115 S.Ct. 1511 (1995), is misplaced. McIntyre struck down a provision requiring a sponsor’s name to be included on handbills concerning a proposed school tax. McIntyre, while permitting anonymous issue advocacy, did not address candidate advocacy. As lower courts have recognized, McIntyre does not prohibit disclosure requirements as to candidate advocacy. Kentucky Right to Life v. Terry, 108 F.3d 637, (6th Cir. 1997), cert. denied. 118 S.Ct. 162 (1997).

D. The Disclosure Requirements of 17 V.S.A. §§ 2881-2882 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

Plaintiff’s facial challenge must fail for the further reason that it completely disregards the compelling state interests supporting the Vermont’s disclosure requirements for political advertisements. The strong justifications for 17 V.S.A. §§ 2881-2882 are described in the Statement of Facts, supra, at 2-7, 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. . . .
Buckley, 424 U.S. at 67-68.

In Vermont, survey research conducted in April 1998 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." Lake Declaration, ¶ 20 (Appendix G). Most Vermonters believe that the new disclosure and reporting requirements will actually help decrease the possibility of corruption in government — a striking finding in light of the general level of cynicism the public often displays concerning the political process. Id. at ¶¶ 15, 25. 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. They believe that the disclosure and reporting provisions will make elected officials more responsive to the concerns of ordinary citizens and less beholden to groups who sponsor ads for them. Id. See also Pollina Declaration, ¶¶ 5-7 (Appendix 1) (explaining VPIRG’s use of information on political expenditures to assist its members, and the Vermont public, in holding elected officials accountable); Power Declaration, ¶¶ 2-4 (Appendix 6); Thompson Declaration, ¶ 6 (Appendix 2); Schuyler Declaration, ¶ ¶ 4-5 (Appendix 3); Taggart Declaration, ¶¶ 2-5 (Appendix 4) (all describing importance of information on special-interest spending in furthering their members’ understanding of public issues and holding elected officials accountable).

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 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. Lake Declaration, at ¶ 26 (Appendix G).

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 are particularly important in promoting compliance with the voluntary spending caps that candidates may adopt under current law. See Bongartz Declaration, ¶¶ 4-7; Pollina Declaration, ¶ 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 4-5.


Plaintiff’s overbreadth challenge to 17 V.S.A. § 2883 must be rejected. Indeed, it is difficult to conceive of a more narrowly tailored reporting requirement for political spending. Section 2883’s reporting requirement 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.

It is important to recognize the dramatic difference between a narrowly tailored measure such as this, and the reporting provision that was at issue in Buckley. Indeed, the entire 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. Buckley, 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 Affidavit of Professor Anthony Gierzynski, ¶¶ 6-7 (Appendix R) (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). Clearly, only the largest advertising 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.

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

Accordingly, the Court should deny plaintiff’s motion for summary judgment striking down 17 V.S.A. § 2883 as facially overbroad.


The foregoing discussion, along with the extensive exhibits submitted by the defendants and defendant-intervenors, demonstrate that the plaintiff is not remotely entitled to summary judgment on its claims that 17 V.S.A. §§ 2881-2883 are facially invalid. Defendant-intervenors submit that the record — including the numerous undisputed material facts that were not included in plaintiff’s motion -- suffices, in fact, to demonstrate that summary judgment should be granted upholding the constitutionality of the challenged provisions. At a minimum, however, defendant-intervenors contend that their submission creates genuine issues of material fact preventing a grant of summary judgment in favor of plaintiff in the absence of a trial or evidentiary hearing.


For the reasons stated above, and on the basis of the authorities cited, plaintiff’s motion for summary judgment should be denied.

Respectfully submitted,

Peter F. Welch
Welch, Graham & Manby
110 Main Street
Burlington, VT 05401-8451
(802) 864-7207
Federal ID No. 000389724

Brenda Wright
John C. Bonifaz
294 Washington Street
Suite 713
Boston, MA 02108
(617) 368-9100
Counsel for Defendant-Intervenors


(1) The text of 17 V.S.A. §§ 2881-2883 is set out in an addendum attached to this Memorandum of Law.

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

(9) Large contributions and large expenditures by persons or committees, other than the candidate and particularly from out-of-state political committees or corporations, reduce public confidence in the electoral process and increase the appearance that candidates and elected officials will not act in the best interests of Vermont citizens.

. . . .

(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).

(3) The defendants and defendant-intervenors have jointly submitted their Appendices of Materials in Support of Defendants' and Defendant-Intervenors' Motions for Summary Judgment and in Opposition to Plaintiff's Motion for Summary Judgment. Those Appendices are numbered A through R. In addition, defendant-intervenors have submitted a separate set of Additional Appendices in Support of Defendant-Intervenors' Motion for Summary Judgment and in Opposition to Plaintiff's Motion for Summary Judgment, which are numbered 1 through 9.

(4) Act 64 also contains new provisions regulating expenditure limits that will go into effect on November 4, 1998. 17 V.S.A. § 2805a.

(5) 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 (Appendix 9): "There has been some failure to report all expenditures that were made on behalf of campaigns so that, (A), people didn't know exactly what was spent; and, (B), if some of those had been disclosed, some people would have gone over their voluntary limits. See also id. at 71 (testifying that, in some 1996 Vermont Senate elections, "voters didn't know what was actually spent by, for and on behalf of the candidates that they were voting for and that's why we are so keen on improving the information and disclosure and access to that information by everybody. . . . If they [the voters] don't think that candidates should have received money from "x," "y," or "z," or that they raised too much or they spent too much, they can make judgments about that.")

(6) First Report on Campaign Finance Inquiry Pursuant to Paragraph 5 of the Memorandum of Understanding, dated October 16, 1997, at 10 (Appendix 8).

(7) See, e.g., David Hackson, Election '96: Much Ballyhooed Campaign Funding Reform Stalled: Dole, Clinton Ducking Limits, Chi. Trib., May 19, 1996, at 3; Ruth Marcus & Charles R. Babcock, The System Cracks Under the Weight of Cash, Wash. Post, February 9, 1997, at A01 (cited in Anthony Corrado, Giving, Spending and "Soft Money," 6 Journal of Law & Pub. Pol. 45, 52-53 (1997) ). See also Jill Abramson & Leslie Wayne, Democrats Used the State Parties to Bypass Limits, N. Y. Times, October 2, 1997, at A1 (attached to First Report on Campaign Finance Inquiry Pursuant to Paragraph 5 of the Memorandum of Understanding, dated October 16, 1997, Appendix 8). 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."

(8) Testimony of David Wilson, Wilson & White, before House Committee on Ways and Means, Hearings on Bill H.28 - Campaign Finance Reform, March 24, 1997, at 80.

(9) See also Declaration of Marjorie Power (Older Women's League), ¶¶ 2-4 (Appendix 6); Declaration of Maria Thompson (Common Cause/Vermont), ¶ 6 (Appendix 2); Declaration of Sonya Schuyler (League of Women Voters of Vermont), ¶¶ 4-5 (Appendix 3); Declaration of Ellen Taggart (Rural Vermont), ¶¶ 2-5 (Appendix 4) (all describing importance of information on campaign spending in furthering their membership's understanding of public issues and maintaining accountability of public officials).

(10) VRLC's Executive Director has testified that VRLC's purpose in publishing a voter guide in its newletter at election time is to encourage people to vote for pro-life candidates. Beerworth Deposition at 30-31 (Appendix B). VRLC's 1996 newsletter, attached to the Beerworth Affidavit as Exhibit A, clearly contains express candidate advocacy. For purposes of this lawsuit, however, it is immaterial whether the newsletters contain express advocacy, because the newsletters are in full compliance with the challenged provisions regardless of whether their content is properly characterized as express advocacy or issue advocacy.

(11) See also Affidavit of Kathleen Hall Jamieson, ¶ 7 (Appendix E) (explaining incompatibility of literalist approach with researchers' understanding of how information is processed and understood).

(12) Federal Election Comm'n v. Christian Action Network, 110 F.3d 1049 (4th Cir. 1997), while highly critical of the FEC's enforcement action in that case, nevertheless reads Furgatch, for the most part, to be consistent with Buckley. 110 F.3d at 1052-55.