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 support of their motion for summary judgment dismissing the claims of Vermont Right to Life Committee, Inc. ("VRLC").

As set forth below, plaintiff’s discovery responses have revealed that VRLC simply does not publish anonymous communications and does not engage in mass media advertising that is covered by the statutes VRLC is challenging, 17 V.S.A. §§ 2881-2883. Even if plaintiff’s allegations sufficed to survive a motion to dismiss for lack of standing at the pleading stage, these allegations are insufficient to withstand summary judgment based on the factual record developed during discovery. VRLC is not suffering any injury as a result of the statutes it challenges, and it therefore lacks standing sufficient to support this Court’s jurisdiction under Article III of the Constitution.

Defendant-intervenors also move for summary judgment on the merits. Assuming, contrary to fact, that VRLC’s activities were affected by Vermont’s new disclosure and reporting provisions, VRLC’s facial and as-applied challenge to those provisions would nevertheless fail. The record demonstrates that the disclosure and reporting provisions at issue here are narrowly tailored to further Vermont’s compelling interests in 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. Accordingly, summary judgment should be granted dismissing VRLC’s complaint.


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:

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.
504 U.S. at 561.

The results of discovery in this action have greatly clarified the nature of plaintiff’s claimed injury, making it clear that VRLC’s activities simply are not affected by any regulation of "implicit" candidate advocacy under 17 V.S.A. §§ 2881-2882. Section 2881 defines political advertisements as communications that "expressly or implicitly advocates the success or defeat of a candidate for office." Plaintiff has focused its constitutional challenge on whether this definition is consistent with First Amendment principles. However, the operative requirements for 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.

VRLC now has specifically denied, in its discovery responses, that it has ever published any anonymous issue advocacy communications. See Plaintiff’s Response to Defendants’ and Defendant-Intervenors’ First Set of Interrogatories, Nos. 1, 4 (Appendix A). Indeed, all of the newsletters and materials on which plaintiff 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 Beerworth Affidavit, Exhibits A-D.(1) Furthermore, VRLC does not publish communications "on behalf of" any candidate, political party, or political committee. As VRLC’s Executive Director has testified, candidates for political office have no input on the contents of VRLC’s newsletters, and VRLC exercises complete editorial control over the content of its communications. Beerworth deposition, at 27-28 (Appendix B). The "on behalf of" standard must be read in light of 17 V.S.A. § 2809, which defines "a related campaign expenditure made on [a] candidate’s behalf" as an expenditure "intentionally facilitated by, solicited by or approved by the candidate or the candidate’s political committee." In the absence of any allegation that VRLC’s expenditures are coordinated with candidates, political parties, or political committees, the designation requirement 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.

Thus, VRLC is unable to satisfy any of the elements required to establish standing. See Lujan, 504 U.S. at 560-61. Because its conduct is in full compliance with the operative requirements of 17 V.S.A. § 2882, VRLC’s activities simply are not affected by the statute’s regulation of "implicit" candidate advocacy. The inescapable conclusion is that VRLC lacks standing to assert its claims. cf. Babbit v. United Farm Workers National Union, 442 U.S. 289, 298 (1979) ("imaginary or speculative" fears of prosecution are insufficient) (citation and internal quotations omitted); cf. Wisconsin Right to Life, Inc. v. Paradise, 138 F.3d 1183, 1998 U.S. App. LEXIS 4660 (7th Cir. 1998) (Wisconsin Right to Life failed to demonstrate justiciable case or controversy to support challenge to state’s alleged regulation of issue advocacy).

Indeed, VRLC has even less of a claim to standing than did Wisconsin Right to Life ("WRTL") in Wisconsin Right to Life, Inc. v. Paradise. There, WRTL had failed to register as a political committee under Wisconsin law. Thus, if the State of Wisconsin were to employ a very broad understanding of the express advocacy test, so as to encompass the activities of WRTL, WRTL would have been in violation of the law by failing to register. Even so, the Court of Appeals found WRTL’s claims too abstract to support standing. 1998 U.S. App. LEXIS 4660 at 4, 10. But here, even if the State of Vermont were to employ a very broad understanding of the phrase "expressly or implicitly advocates the success or defeat of a candidate" in 17 V.S.A.§ 2881, VRLC’s newsletters would not be in violation of the statute. That is because the statute merely requires disclosure of the name and address of the person paying for the ad — which VRLC already discloses in its communications — and the name of any candidate, party or political committee on whose behalf the ad was published — which is inapplicable to VRLC because it acts independently of candidates. The ruling VRLC wants — a ruling that Vermont’s statute defines "political advertisements" so broadly as to transgress the express advocacy test of Buckley — simply would not make any difference to VRLC’s activities. There is no injury-in-fact, no causation, no redressability, and no standing.

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.(2) 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. Accordingly, summary judgment should be entered dismissing Counts 1, 2 and 3 of the Complaint.


Count 2 of the Complaint alleges that the phrase "success or defeat of a candidate for office" in 17 V.S.A. § 2881 is unconstitutional because "success" could mean something other than "election." This allegation simply presents nothing warranting review by a federal court. In the statute, "success" is contrasted with "defeat." "Success," in the context of elections, and in the context of § 2881, clearly means "election." Plaintiff has not presented even the slightest evidence that anything else was intended by the Vermont Legislature. Plaintiff’s strained and artificial interpretation is not enough to create a justiciable controversy where none exists. Count 2, therefore, fails to present a justiciable case or controversy. Railway Mail Ass’n v. Corsi, 326 U.S. 88 (1945). Plaintiff also has no injury-in-fact adequate to establish its standing to challenge this aspect of the statute, for the reasons outlined in Point I, above. Accordingly, Count 2 of the complaint must be dismissed


Plaintiff’s discovery responses demonstrate that plaintiff does not make expenditures for mass media activities that are governed by 17 V.S.A. § 2883. 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.

Although plaintiff’s complaint alleged that its newsletters constituted "mass media" activities, discovery obtained by defendants and defendant-intervenors disproves the plaintiff’s contention. VRLC’s Executive Director explained at her deposition that VRLC does not distribute its newsletters to the general public, but only to the membership of VRLC. Beerworth deposition, at 19 (Appendix B). An organization’s communications with its own membership are not "mass media activities." They clearly fall outside the scope of 17 V.S.A. § 2883.

The only other alleged "mass media" activities that plaintiff has identified in its motion for summary judgment consist of a poster displayed at a booth set up by the Chittenden County Right to Life chapter at the Chittenden County fair, and handouts that were given to persons who stopped by the booth. Beerworth Affidavit, Exhibits C & D; Beerworth deposition at 41-42. A poster and handouts are not mass media activities as defined in the statute.(3) The mass media regulation is clearly directed to political advertising at the "wholesale," not the "retail," level.

In sum, the discovery conducted in the course of this litigation brings news that rationally ought to be welcome to the plaintiff. Under a straightforward reading of 17 V.S.A. §§ 2881-2883, VRLC’s activities are in full compliance or are simply unregulated at all. There has been no need for VRLC to alter its communications, much less censor them. Although the disclosure and reporting requirements of V.S.A. §§ 2881-2883 would create no substantial burden for VRLC, VRLC is in fact free to continue its activities without making any disclosures or filings to which it objects. This conclusion for VRLC’s lawsuit is somewhat anticlimactic, but it is inescapable in light of the factual record concerning VRLC’s activities. VRLC’s claims present no justiciable case or controversy supporting a federal court’s Article III jurisdiction. Summary judgment should be entered dismissing VRLC’s claims.


For the same reasons establishing that plaintiff VRLC has suffered no injury from the operation of 17 V.S.A. §§ 2881-2883, plaintiff cannot sustain an as-applied challenge to those provisions. The reporting and disclosure provisions do not interfere with any of plaintiff’s activities. If, contrary to fact, plaintiff did engage in activities directly affected by the provisions, the burden of compliance on plaintiff would be so minimal as to require judgment dismissing the as-applied challenge as a matter of law. Plaintiff VRLC is a registered lobbyist in Vermont and also operates a political committee (see Beerworth deposition at 7-8, 13) (Appendix B); it thus already makes numerous filings with the State in carrying out its political activities. VRLC can demonstrate no history of threats, reprisals or harrassment due to such reporting requirements. Cf. Buckley v. Valeo, 424 U.S. at 74. Its as-applied challenge should be dismissed.


For the reasons set forth in Defendant-Intervenors’ Memorandum of Law in Opposition to Plaintiff’s Motion for Summary Judgment, Defendant-Intervenors are entitled to summary judgment dismissing plaintiffs’ facial challenge to 17 V.S.A. §§ 2881-2883 on the merits. To avoid duplication, defendant-intervenors do not repeat those arguments here, but incorporate those arguments by reference. In support of their motion, Defendant-intervenors also rely upon their Statement of Undisputed Material Facts in Support of Defendant-Intervenors’ Motion for Summary Judgment, and the Appendices submitted in support thereof.


For the reasons set forth above, and on the basis of the authorities cited, defendant-intervenors respectfully request that the Court grant their motion for summary judgment and dismiss plaintiff’s complaint.

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 poster displayed at the Chittenden County fair was part of a booth marked by a sign identifying both VRLC and the Chittenden County Right to Life Chapter. Beerworth deposition at 41.

(2) See Bd. of Trustees of State University of N.Y. v. Fox, 492 U.S. 469, 482-83 (1989) ("the person invoking overbreadth 'may challenge a statute that infringes protected speech even if the statute might constitutionally be applied to him,'" quoting Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 462 (1978); 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).)

(3) Although these materials fall outside ? 2883's coverage of mass media activities, it is also worth noting that plaintiff has not demonstrated an expenditure of more than $500 for such materials. VRLC's estimate of the cost, see Interrogatory Response 7, (Appendix C) relies on somewhat creative, post-hoc calculations attributing to the poster alone most of the costs of setting up the entire booth. The poster itself cost only $263.32. [See also Beerworth deposition at 42 (Appendix B) (acknowledging that allocation of 75% of costs of booth as an expenditure for the poster was made specifically for purposes of this litigation).