Vermont’s Election Laws Survive 2nd Circuit

     MANHATTAN (CN) – The 2nd Circuit today upheld Vermont’s limits on what donors can contribute to political committees and its disclosure requirements for “electioneering communication” and “mass media activities.”
     “Basically, we see this as a huge victory for the voters of Vermont,” the Campaign Legal Center’s Tara Malloy said in a phone interview.
     The Vermont Right to Life Committee had sued to invalidate such provisions of the state’s campaign-finance laws as unconstitutionally vague and overbroad. It argued that its subcommittee Fund for Independent Political Expenditures was not subject to $2,000 campaign limits because it did not contribute directly to candidates and was distinct from its political committee.
     Malloy, whose organization helped write a friend-of-court brief supporting Vermont’s Attorney General William Sorrell, commented that many of these “purportedly” independent political committees were “shams.”
     “For too long in federal elections we have seen so-called ‘independent’ groups operating hand-in-glove with candidates and parties, as well as with other committees that were clearly coordinating with candidates and parties,” Malloy said in a statement. “The notion that their activities were truly independent and non-corrupting has been a sad joke.”
     Vermont Attorney General Sorrell also praised the decision for forcing “independent-expenditure groups” to live up to their designations.
     “It confirms our position that a group must do more than simply call itself an independent-expenditure group,” Sorrell wrote. “It must actually behave like one.”
     U.S. District Judge William Sessions rejected the anti-abortion group’s challenge two years ago, finding that there was “no clear accounting” between its two entities.
     While the Supreme Court’s decision in Citizens United v. Federal Election Commission sparked popular controversy for loosening constraints in corporate political spending, a lesser-known section of the ruling also made Vermont’s reporting requirements permissable, according to the 80-page opinion by Sessions.
     This section “affirmed the line of cases permitting governments to require political speakers to identify themselves on their communications and to disclose their basic organizational structure, expenditures, and contributions,” Sessions wrote.
     The 2nd Circuit unanimously affirmed that decision “in all respects” on Wednesday morning.
     Writing for a three-member panel, Judge Christopher Droney said that Vermont’s media-disclosure requirements could bring “so-called ‘whisper campaigns’ into the sunlight.”
     The ruling then uses a footnote to reference Vanity Fair’s article “The Trashing of the John McCain.” The story took an in-depth look at the smears against the U.S. senator during the 2000 Republican primary, saying President George W. Bush’s campaign had used phone banks and flyers to disseminate the bigoted rumor that Sen. John McCain had fathered a black child out of wedlock and lost his sanity as a Vietnam prisoner of war.
     These tactics came to a head during an ugly fight in South Carolina.
     “If such conduct occurred in Vermont, the group that arranged the phone calls would be required to report it to the candidate being attacked,” Droney’s footnote states. “This would allow the candidate to more quickly and effectively respond.”
     Asked about this law, Malloy said that she had not seen many other states adopt Vermont’s approach.
     “As far as I am aware, it’s an innovative way of going about getting that sort of transparency,” she said.
     Conservative attorney James Bopp Jr., a frequent opponent of campaign-finance regulations who advised the Citizens United group for their Supreme Court battle, called the opinion “a real outlier.”
     “Well, they’ve really gone out on a limb,” Bopp said in a phone interview.
     Signaling another potential Supreme Court fight, Bopp said, “We do not intend to stop here.”

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