BAILEY v. STATE OF MAINE COMMISSION ON GOVERNMENTAL ETHICS AND ELECTION PRACTICES
ORDER ON MOTIONS FOR SUMMARY JUDGMENT granting 69 Motion for Summary Judgment; denying 72 Motion for Summary Judgment; granting 75 Motion for Summary Judgment By JUDGE NANCY TORRESEN. (dfr)
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
STATE OF MAINE COMMISSION
ON GOVERNMENTAL ETHICS
AND ELECTION PRACTICES,
) Docket no. 1:11-cv-00179-NT
ORDER ON MOTIONS FOR SUMMARY JUDGMENT
On January 31, 2011, the Maine Commission on Governmental Ethics and
Election Practices (the “Commission”) fined the Plaintiff, Dennis Bailey, $200 for
failing to provide his name and address on “the Cutler Files,” his anonymous
website advocating the defeat of gubernatorial candidate Eliot Cutler. The
Commission found Bailey in violation of 21-A M.R.S.A. § 1014, which requires that
election advocacy communications: (1) state the name and address of the person
financing the communication; and (2) state whether the communication is
authorized by a candidate. The Plaintiff appealed the Commission’s action in
Cumberland County Superior Court pursuant to Maine Rule of Civil Procedure 80C
and 5 M.R.S.A. § 11002. Pursuant to Rule 80C(i), the Plaintiff joined three
independent constitutional claims challenging section 1014 as applied to him. He
impermissibly burden his right to speak anonymously; (2) discriminate against him
as a citizen journalist and internet news source; and (3) are unconstitutional as
applied to his de minimis expenditure. Eliot Cutler intervened, removed the case to
this Court, and filed for summary judgment. Shortly thereafter, the Plaintiff and
the Commission filed cross-motions for summary judgment. These three motions are
now before the Court. For the following reasons, the Plaintiff’s Motion for Summary
Judgment is DENIED and the Defendants’ Motions for Summary Judgment are
A. Relevant Provisions of 2010 Maine Election Law
The Plaintiff’s suit is based on the application of Maine’s 20101 disclosure
requirements2 to the Cutler Files website. The disclosure requirements of 21-A
M.R.S.A. § 1014(2) apply to expenditures3 not authorized by a candidate,4 financing
communications5 “expressly advocating the election or defeat of a clearly identified
Maine’s election laws have been amended to exempt internet and email activities costing less
than $100. P.L. 2011, ch. 689, § 13 (codified as amended at 21-A M.R.S.A. § 1014(6)(C) (Supp. 2011)).
Of course, the Court applies the law in effect at the time of the 2010 gubernatorial election.
The Court refers to both the attribution and disclaimer requirements found in section 1014
as the “disclosure requirements.”
An expenditure includes: “A purchase, payment, distribution, loan, advance, deposit or gift of
money or anything of value made for the purpose of influencing the nomination or election of any
person to political office . . . .” 21-A M.R.S.A. § 1012(3)(A)(1).
Section 1011 provides: “This subchapter applies to candidates for all state and county offices
and to campaigns for their nomination and election.” 21-A M.R.S.A. § 1011. This section was
subsequently amended to include candidates for municipal office. P.L. 2009, ch. 366, § 1.
The statute applies to communications made “through broadcasting stations, newspapers,
magazines, campaign signs or other outdoor advertising facilities, publicly accessible sites on the
candidate.” 21-A M.R.S.A. 1014(1). If in written form, these communications must
contain the words “NOT PAID FOR OR AUTHORIZED BY ANY CANDIDATE” (the
disclaimer requirement) and must provide the name and address of the person who
made or financed the expenditure for the communication (the attribution
requirement). 21-A M.R.S.A. § 1014(2). The disclosure requirements also apply to
an expenditure made for a communication that clearly identifies a candidate and
that is disseminated closer to an election to influence that election. 21-A M.R.S.A. §
Section 1012 contains a press exemption which excludes from the definition
of “expenditure,” “any news story, commentary or editorial distributed through the
facilities of any broadcasting station, newspaper, magazine or other periodical
publication, unless the facilities are owned or controlled by any political party,
political committee, candidate or candidate’s immediate family.” 21-A M.R.S.A. §
A person making independent expenditures aggregating in excess of $100
during an election must file a detailed, itemized report with the Commission with a
Internet, direct mails or other similar types of general public political advertising or through flyers,
handbills, bumper stickers and other nonperiodical publications . . . .” 21-A M.R.S.A. § 1014(1).
Whenever a person makes an expenditure to finance a communication that names or
depicts a clearly identified candidate and that is disseminated during the 21 days
before a primary election or 35 days before a general election through the media
described in subsection 1, the communication must state the name and address of the
person who made or financed the communication and a statement that the
communication was or was not authorized by the candidate. The disclosure is not
required if the communication was not made for the purpose of influencing the
candidate’s nomination for election or election.
21-A M.R.S.A. § 1014(2-A).
statement made under oath or affirmation stating whether the expenditure was
made in cooperation with a candidate. 21-A M.R.S.A. § 1019-B.
Section 1014(4) permits fines of up to $200 for violations of section 1014
within twenty days prior to an election and fines of up to $100 for violations made
outside of twenty days prior to an election that are not corrected within 10 days of
notice of the violation. 21-A M.R.S.A. § 1014(4).
1. The 2010 Election and the Cutler Files Website
The Plaintiff, Dennis Bailey, is a well-known figure in Maine state politics
and the owner and principal of Savvy, Inc., a public relations firm, which he
founded in 2000, and which describes itself as “Maine’s premier public relations
firm offering professional expertise in media and public relations, crisis
communications, political campaign management, speechwriting and more.”
Defendants’ Joint Statement of Material Facts ¶ 5 (“DJSMF”) (Doc. 70). Bailey
owns and controls a personal blog called “SavvySpin” on which he periodically posts
news and commentary. The Savvy, Inc. website contains a link to the “SavvySpin”
Bailey has a degree in journalism from the University of Maine and has
worked in both journalism and politics. Bailey worked as a reporter for several
Maine newspapers and as a freelance reporter for several national publications. In
the ‘90s, Bailey worked as press secretary for Maine U.S. Congressman Tom
Andrews; press secretary for Maine gubernatorial candidate Tom Allen; press
secretary and political advisor for Angus King during his first campaign for
governor; and press secretary, policy advisor, and speech writer for Governor King
after the election. In September of 2009, Bailey was hired as a political consultant
by the Rosa Scarcelli gubernatorial campaign. The Rosa for Maine campaign paid
Bailey a total of $33,000 for his services in the primary election campaign.
In late summer of 2009, when Scarcelli’s husband Thomas Rhoads7 learned
that Eliot Cutler was going to enter the race for governor, he began downloading
negative articles on Cutler from the internet. In October of 2009, Rhoads drafted a
document entitled “Top Ten Eliot Cutler Vulnerabilities,” which he emailed to
Scarcelli lost the Democratic primary on June 8, 2010, but Cutler remained
in the race as an independent. Following Scarcelli’s loss, Scarcelli and Rhoads tried
unsuccessfully to sell Rhoads’s research to Democratic gubernatorial candidate
Libby Mitchell’s campaign for $30,000.8 After Scarcelli’s primary defeat,
independent gubernatorial candidate Shawn Moody hired Bailey to work for his
In his Response to the Defendants’ Joint Statement of Material Facts, the Plaintiff requested
that the Court strike as irrelevant over 100 of the Defendants’ factual statements mostly linking
2010 Democratic gubernatorial primary candidate Rosa Scarcelli and her husband Thomas Rhoads
to the Cutler Files website. The Court agrees that many of the challenged facts are not relevant to
the Plaintiff’s legal claims. However, the Court has included some facts about Rhoads’s research on
Eliot Cutler because they are relevant to the Court’s analysis. To the extent the Court relies on these
facts, the Plaintiff’s objections are OVERRULED and his motion to strike is DENIED.
Rhoads and Scarcelli asked for $30,000 because of the amount of time that Rhoads spent
compiling the articles and because Link Strategies had charged the Scarcelli campaign $30,000 for
campaign.9 Moody’s campaign paid Bailey $35,000 for his services during the
In July of 2010, Bailey and Rhoads discussed posting their research on Cutler
on an anonymous website. Bailey created a mockup of what was to become the
Cutler Files website, which included content written by Rhoads and Bailey. Bailey
e-mailed the Cutler Files mockup to Rhoads on July 15, 2010 and spent about three
days at the beginning of August creating the Cutler Files website using software on
On August 4, 2010, Bailey registered a domain name, www.cutlerfiles.com,
and paid the registration fee and the fee for two months of web hosting through
Savvy, Inc. The Cutler Files website became publicly accessible on August 30, 2010.
It did not include a statement identifying the name of the person who made or
financed the website or a statement that the website was not authorized by any
On September 9 or 10, 2010, the following statement appeared on the bottom
of the Cutler Files home page:
Who we are: We are a group of researchers, writers and journalists
who are frustrated that Maine’s mainstream media is either unwilling
or incapable of adequately investigating the backgrounds of candidates
for higher office. We are not authorized by or affiliated with any
candidate or political party, and we have not been compensated in any
way for our effort.
On July 6, 2010, Bailey wrote a post critical of Cutler on SavvySpin entitled “Eliot Cutler
Called Me a Whore,” which responded to a sarcastic email that Cutler had sent Scarcelli after Bailey
began to work on the Moody campaign.
DJSMF ¶ 135. The statement included contact information for Waterville, Maine
attorney Daniel Billings. The disclaimer “NOT PAID FOR OR AUTHORIZED BY
ANY CANDIDATE” also appeared at this time on the bottom of the home page and
on several other pages of the site.
The parties dispute how frequently Bailey added content to the website or
otherwise changed the site. However, the parties agree that the content was
complete as of September 29, 2010, when the Cutler Files website consisted of the
home page and nine additional pages on different topics related to Cutler. On the
home page of the Cutler Files in place as of September 1, 2010, the website stated:
Over the next several weeks, THE SECRET FILE ON ELIOT
CUTLER will reveal the facts about his life, facts you’ll find nowhere
else, to help voters see the full picture of the man – his arrogance and
ego, his ties to big corporations and foreign countries and how he has
spent a lifetime working directly against the interests of Maine and
the US. You’ll see why Cutler is unfit to be Maine’s next governor.10
DJSMF ¶ 129. When the website content was complete, the home page had links to
the nine additional topics, which were entitled: “The Bangor Bison,” “Cutler in
Maine,” “Saying ‘NO’ at OMB,” “Cutler in DC,” “China’s Lobbyist,” “The Thornburg
Mess,” “Eliot’s Fantasy,” “Reward Offered,” and “Cutler in Long Underwear.”
The Cutler Files website was discontinued on October 29, 2010, four days
before the November 2, 2010 general election for governor. The monthly web
hosting fee for November 2010 would have been due on October 29, 2010.
Defendants’ Joint Statement of Additional Material Facts (“JSAMF”) ¶ 202 (Doc.
The last line of this paragraph referring to Cutler’s fitness for Governor was deleted from the
Cutler Files home page at some point between the version of the home page dated September 1,
2010, Doc. 70-69 at 1, and the version of the homepage dated October 4, 2010, Doc. 70-64 at 2.
82). During the two months in which the Cutler Files website was publicly
accessible, visitors to the site made 46,989 page requests.
After it became public that Bailey had created the Cutler Files website,11
Bailey received three or four anonymous voicemail messages on his office phone.
Bailey reports that his secretary quit after he went public as the Cutler Files
creator because “[t]he situation became so uncomfortable and intolerable.” Bailey
Declaration ¶ 50 (Doc. 73-1). Bailey testified that in the voicemails:
They called me names, jerk, asshole, coward. They said, we hope you
fail in everything you do, you should leave the state, you’re scum.
Those kinds of things . . . there was one where the guy said I’m going
to do everything I can to make sure you fail, which I took as a threat. I
don’t know what that means. You know, what is he going to do?
Bailey Dep. 209:21-25, 210-211, 212:1 (Doc. 82-5). Bailey testified that “they were
really mad at me for being anonymous.” Bailey Dep. 210:2-4.
2. Proceedings Before the Commission
On September 7, 2010, the Cutler campaign filed a complaint with the
Commission requesting an investigation into the Cutler Files website and potential
violations of the Maine election laws. At a public meeting on September 9, 2010, the
Commission authorized an investigation by Commission staff into the Cutler Files
Based on invoices Rhoads and Bailey provided to the Commission, the
Commission determined that Bailey had spent $91.38 to create and publish the
Cutler Files, less than the $100 threshold for section 1019-B’s reporting
Bailey publicly revealed himself as the Cutler Files creator shortly after the Commission’s
December 16, 2010 meeting finding the Cutler Files in violation of section 1014.
requirements. This total included the domain name registration cost, two months of
web hosting fees, and the price of research materials used for the site’s content,
including articles downloaded from the internet and documents obtained from the
Cumberland County Registry of Deeds.
The Commission found Bailey, whose identity the Commission protected, in
violation of 21-A M.R.S.A. §§ 1014(2) and (2-A). The Commission determined that
Bailey had designed the website, edited all of the content, and made all
modifications to the website, though it found that Rhoads had contributed some
content. The Commission found no evidence suggesting that a gubernatorial
candidate in the 2010 general election had authorized the website. The Commission
also determined that expenditures for the Cutler Files were not excluded from
1014(2) and (2-A) under the press exemption because it found that the Cutler Files
website was not a periodical publication. The Commission concluded that the
website expressly advocated for Eliot Cutler’s defeat up to the gubernatorial
election, bringing it under sections 1014(2) and (2-A). The Commission concluded
that the website did not have a disclaimer from August 30 to September 9 or 10 or
provide attribution from August 30 to October 29, in violation of 1014(2) and (2-A).
The Commission finally determined that the $91.38 expended in creating the Cutler
Files was not de minimis but did not reach the $100 threshold for section 1019-B’s
reporting requirements. Bailey was fined $200 for his violations of sections 1014(2)
I. The Constitutional Claims – Counts I, III and IV
Summary Judgment Standard
For purposes of the parties’ cross-motions for summary judgment on the
Plaintiff’s independent constitutional claims brought under 42 U.S.C. § 1983, the
Court may consider all the evidence in the record gathered during discovery, and it
is not limited to the record before the Commission. Fed. R. Civ. P. 56(c); Baker’s
Table, Inc. v. City of Portland, 743 A.2d 237, 241 (Me. 2000).
Under Federal Rule of Civil Procedure 56, the Court shall grant summary
judgment if the movant shows “that there is no genuine issue as to any material
fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). “In applying this principle, it is important to bear in mind that not every
genuine factual conflict necessitates a trial. It is only when a disputed fact has the
potential to change the outcome of the suit under the governing law if found
favorably to the nonmovant that the materiality hurdle is cleared.” Martinez v.
Colon, 54 F.3d 980, 984 (1st Cir. 1995).
If the moving party will not bear the burden of proof at trial, the moving
party can make a prima facie case that it is entitled to summary judgment by either
submitting evidence that negates an essential element of the nonmoving party’s
claim, or demonstrating that the nonmoving party’s evidence is insufficient to
establish an essential element of its claim. Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986). The nonmoving party may defeat the movant’s prima facie entitlement
to summary judgment by demonstrating to the Court specific facts in the record
overlooked or ignored by the moving party that support the essential elements of
the party’s claim. Id. at 324; see Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986).
Count I: First Amendment Challenge to Application of
In Count I, the Plaintiff alleges that the Commission’s application of section
1014’s attribution requirement is unconstitutional under the First Amendment of
the U.S. Constitution,12 Article I, Section 4 of the Maine Constitution,13 and 42
U.S.C. § 198314 because it impermissibly burdens his right to speak anonymously.
Laws like section 1014 require disclosure of information by those engaging in
political speech but do not prohibit or otherwise restrict the content of political
speech. The seminal case in this area is Buckley v. Valeo, 424 U.S. 1 (1976), wherein
the Supreme Court addressed challenges to the Federal Election Campaign Act
(FECA) and its contribution and expenditure limits and reporting and disclosure
requirements.15 The Supreme Court applied strict scrutiny to FECA’s limitations on
“Congress shall make no law . . . abridging the freedom of speech, or of the press . . . .” U.S.
Const. amend. I.
“Every citizen may freely speak, write and publish sentiments on any subject, being
responsible for the abuse of this liberty; no laws shall be passed regulating or restraining the
freedom of the press . . . .” Me Const. art. I, § 4. Section 4 of the Maine Constitution is “no less
restrictive than the Federal Constitution.” City of Bangor v. Diva’s, Inc., 830 A.2d 989, 902 (Me.
2003) (quoting State v. Janisczak, 579 A.2d 736, 740 (Me. 1990)).
“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of
any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of
the United States or other person within the jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in
an action at law, suit in equity, or other proper proceeding for redress . . . .” 42 U.S.C. § 1983.
In addition to data collection and reporting requirements which included the name and
addresses of donors to political committees and candidates, FECA required every individual who
made a contribution or expenditure of over $100 in a calendar year to file a statement with the FEC.
contributions and expenditures, but it used “exacting scrutiny” to analyze FECA’s
reporting requirements. Acknowledging that “compelled disclosure has the potential
for substantially infringing the exercise of First Amendment rights,” the Supreme
Court explained that a slightly less rigorous standard was appropriate because
“[u]nlike the overall limitations on contributions and expenditures, the disclosure
requirements impose no ceiling on campaign-related activities.” Id. at 67, 64. Under
exacting scrutiny, there must “be a ‘relevant correlation’ or ‘substantial relation’
between the governmental interest and the information required to be disclosed.”
Id. at 64. The Court found that the disclosure requirements directly served three
substantial government interests. First, they served to provide information to the
electorate; second, they deterred actual corruption and the appearance of corruption
by exposing contributions and expenditures to the light of publicity; and third, they
served a recordkeeping function allowing officials to gather information to
determine whether contribution limits had been met. Id. at 66-68.
Disclosure laws necessarily burden the right to anonymity. As the Supreme
Court recognized in Buckley:
It is undoubtedly true that public disclosure of contributions to
candidates and political parties will deter some individuals who
otherwise might contribute. In some instances, disclosure may even
expose contributors to harassment or retaliation. These are not
insignificant burdens on individual rights, and they must be weighed
carefully against the interests which Congress has sought to promote
by this legislation. In this process, we note and agree . . . that
disclosure requirements certainly in most applications appear to be the
least restrictive means of curbing the evils of campaign ignorance and
corruption that Congress found to exist.
Violations of the recordkeeping and reporting requirements subjected the offender to misdemeanor
charges. Id. at 63-64.
Id. at 68 (footnotes omitted).
Though it found the disclosure and reporting requirements of FECA
constitutional, the Buckley Court left the door open to a challenge that a disclosure
requirement could be unconstitutional “as applied” to plaintiffs who could
demonstrate that disclosure would expose them to “‘economic reprisal, loss of
employment, threat of physical coercion and other manifestations of public
hostility.’” Id. at 69 (quoting NAACP v. Alabama, 357 U.S. 449, 462 (1958)
(discussing uncontested types of harm suffered by NAACP members after their
identities were disclosed)). The Court found such a case in Brown v. Socialist
Workers ‘74 Campaign Committee, 459 U.S. 87 (1982), where the Socialist Workers
Party produced “substantial evidence of both governmental and private hostility
toward and harassment of SWP members and supporters.” Id. at 91. The Supreme
Court held that because the Socialist Workers Party had demonstrated a reasonable
probability that disclosure would subject those identified to harassment and threats
of reprisals, the disclosure law at issue was unconstitutional as applied. Id. at 102.
Further development of the law came in 1995, when the Supreme Court
decided McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995). There, the
Court faced a broadly written Ohio statute which applied the disclosure
requirement not only to expenditures for communications expressly advocating the
election or defeat of a candidate but also to all speech designed “to promote the
adoption or defeat of any issues.”16 The challenge was brought by Margaret
The statute provided:
McIntyre, a lone pamphleteer who was cited outside a public meeting for handing
out leaflets expressing her opposition to a referendum on a school tax levy. Some of
her handbills had her name on them; some were signed “concerned parents and tax
Noting a long and illustrious tradition of anonymous works, including the
Federalist Papers, the Supreme Court recognized that “an author’s decision to
remain anonymous . . . is an aspect of the freedom of speech protected by the First
Amendment.” Id. at 342. The McIntyre Court also acknowledged that anonymity
“provides a way for a writer who may be personally unpopular to ensure that
readers will not prejudge her message simply because they do not like its
proponent.” Id. at 342. The McIntyre Court distinguished Buckley on several
grounds, including: 1) that Mrs. McIntyre’s speech was about a ballot issue rather
than a candidate election; 2) that the Ohio law effectively regulated all political
speech; and 3) that Mrs. McIntyre was acting independently. Id. at 355-56. The
Supreme Court found that the state’s interests in preventing fraud and providing
No person shall write, print, post, or distribute, or cause to be written, printed,
posted, or distributed, a notice, placard, dodger, advertisement, sample ballot, or any
other form of general publication which is designed to promote the nomination or
election or defeat of a candidate, or to promote the adoption or defeat of any issue, or
to influence the voters in any election, or make an expenditure for the purpose of
financing political communications through newspapers, magazines, outdoor
advertising facilities, direct mailings, or other similar types of general public political
advertising, or through flyers, handbills, or other nonperiodical printed matter,
unless there appears on such form of publication in a conspicuous place or is
contained within said statement the name and residence or business address of the
chairman, treasurer, or secretary of the organization issuing the same, or the person
who issues, makes or is responsible therefor.
Id. at 338 n.3.
the electorate with information were insufficient to justify Ohio’s open-ended law.
Id. at 356.
The Court revisited its First Amendment jurisprudence in the recent case of
Citizens United v. Federal Election Commission, 558 U.S. 301, 130 S. Ct. 876 (2010),
where it reversed its position on independent expenditures by corporations. For
purposes of the present case, Citizens United is important because in Part IV of the
Court’s opinion it revalidated the constitutionality of disclosure requirements by an
eight to one vote. Disclosure requirements were distinguished from laws which
“burden the ability to speak,” because they “‘impose no ceiling on campaign-related
activities’ and ‘do not prevent anyone from speaking.’” Id. at 914 (quoting Buckley,
424 U.S. at 64 and McConnell v. Fed. Election Comm’n, 540 U.S. 93, 201 (2003)).
Applying exacting scrutiny, the Court found the government’s informational
interest sufficiently important. “[T]he public has an interest in knowing who is
speaking about a candidate shortly before an election . . . the informational interest
alone is sufficient to justify [application of the disclosure requirement], it is not
necessary to consider the Government’s other asserted interests.” Id. at 915-16.
Citizens United also kept the door open for an “as applied” challenge, but rejected
the plaintiff’s as-applied challenge because it had neither shown evidence of
“threats or reprisals” nor demonstrated any “harassment or retaliation.” Id. at 916.
None of the eight justices who joined Part IV of the Citizens United opinion
addressed McIntyre’s anonymity language.17
Justice Thomas dissented from Part IV in part because the majority ignored McIntyre’s
concern for anonymous speech. Id. at 980.
In National Organization for Marriage v. McKee, 649 F.3d 34 (1st Cir. 2011),
the First Circuit upheld section 1014 against a facial First Amendment challenge.
“‘Citizens United has effectively disposed of any attack on Maine’s attribution and
disclaimer requirements.’” Id. at 61 (quoting Nat’l Org. for Marriage v. McKee, 723
F. Supp. 2d 245, 267 (D. Me. 2010)). Applying exacting scrutiny, the First Circuit
The requirements are minimal, calling only for a statement of whether
the message was authorized by a candidate and disclosure of the name
and address of the person who made or financed the communication.
These are precisely the requirements approved in Citizens United, and
they bear a close relation to Maine’s interest in dissemination of
information regarding the financing of political messages. The
disclaimer and attribution requirements are, on their face,
Nat’l Org. for Marriage, 649 F.3d at 61 (citations omitted). The Court discussed
Maine’s informational interest, which it found sufficiently important to justify
In an age characterized by the rapid multiplication of media outlets
and the rise of internet reporting, the “marketplace of ideas” has
become flooded with a profusion of information and political messages.
Citizens rely ever more on a message’s source as a proxy for reliability
and a barometer of political spin. Disclosing the identity and
constituency of a speaker engaged in political speech thus “enables the
electorate to make informed decisions and give proper weight to
different speakers and messages.”
Id. at 57 (quoting Citizens United, 130 S. Ct. at 916). See also First Nat’l Bank v.
Bellotti, 435 U.S. 765, 791-92 (1978) (“[T]he people in our democracy are entrusted
with the responsibility for judging and evaluating the relative merits of conflicting
arguments. They may consider, in making their judgment, the source and
credibility of the advocate.”).
The Plaintiff argues that section 1014 is unconstitutional as applied to him.
In order to pass through that door, Citizens United and Buckley require that a
plaintiff show a “reasonable probability” that compelled disclosure would have
subjected him to “threats, harassment, or reprisals from either Government officials
or private parties.” Buckley, 424 U.S. at 74. See, e.g., Brown, 459 U.S. at 102
(disclosure requirements unconstitutional as applied to Socialist Workers Party);
ProtectMarriage.com v. Bowen, No. 2:09-cv-00058-MCE-DAD, 2011 WL 5507204, at
*14 (E.D. Cal., Nov. 4, 2011) (rejecting as-applied challenge despite evidence of
threats and harassment).
There is insufficient evidence in the record to support a reasonable inference
that Bailey would have been subjected to threats, harassment, or reprisals from the
state or private parties if forced to reveal his identity. In fact, after Bailey revealed
himself as the author of the Cutler Files, the evidence in the record shows that he
received at most four harassing voicemails, insufficient to support an as-applied
challenge under Buckley or Brown, particularly as the callers objected to Bailey’s
choice to publish the Cutler Files anonymously, not his viewpoint or ideas.
Unlike the Social Workers Party in Brown, the Plaintiff has not shown that
his viewpoint was rejected or unpopular. In fact, the majority of Mainers voted for
candidates other than Eliot Cutler.18 Bailey states in his declaration that “I was
concerned about personal and economic retaliation if my identity as the author of
the Cutler Files was made public. I also knew that I was taking on a very public
fight with a very wealthy powerful individual who might have been elected
Governor.” Bailey Declaration ¶¶ 46-47. Undercutting his concern about reprisals,
however, is the July 6, 2010 post “Eliot Cutler Called Me A Whore” on Bailey’s blog
SavvySpin. This was a personal attack on Cutler for which Bailey made no attempt
to hide his identity as author.
At oral argument, the Plaintiff’s counsel conceded that Bailey had not
suffered the type or degree of harm that Citizens United and Buckley said was
necessary to support an as-applied challenge. Citizens United, 130 S. Ct. at 914
(threats, harassment, reprisals); Buckley, 424 U.S. at 659-60 (evidence of the sort
proffered in NAACP v. Alabama). The Plaintiff instead argued that he should be
allowed through the door held open for Mrs. McIntyre. Because he acted alone, the
Plaintiff argued that his case should be governed by McIntyre not Citizens United
A number of courts have addressed the tension between Citizens United and
McIntyre. In Sampson v. Buecher, 625 F.3d 1247 (10th Cir. 2010), the Tenth Circuit
found that challenged disclosure requirements were unconstitutional as applied to a
small group of individuals who opposed the annexation of their neighborhood. In so
holding, the court focused on the difference between communications relating to
The Court takes judicial notice of the results of the November 2, 2010 general election:
LePage 37.6%, Cutler 35.9%, Mitchell 18.8%. Bureau of Corporations, Elections & Commissions,
Elections Div., General Election Tabulations, www.maine.gov/sos/cec/elec/2010/gen2010gov.html.
candidates versus those pertaining to ballot issues and distinguished McIntyre on
the grounds that the state’s informational interest in disclosure is more attenuated
in ballot issue cases. Id. at 1255-57. See also Hatchett v. Barland, 816 F. Supp. 2d
583 (E.D. Wis. 2011) (finding disclosure requirement unconstitutional as applied to
an individual advocating defeat of a ballot initiative).
In Vermont Right to Life Committee, Inc. v. Sorrell, No. 2:09-CV-188, 2012
WL 2370445, at *20 (D. Vt. June 21, 2012), the court pointed out that the Supreme
Court in McIntyre applied strict scrutiny to the Ohio law rather than the exacting
scrutiny it used in Citizens United. The court concluded that McIntyre is inapposite
to mass media activities and electioneering communications. In Many Cultures, One
Message v. Clements, 830 F. Supp. 2d 1111 (W.D. Wash. 2011), the court pointed out
that the Ohio law in McIntyre was found to be “a regulation of pure speech,” thus
warranting strict scrutiny. Id. at 1161 n.27 (quoting McIntyre, 514 U.S. at 345). See
also Ctr. for Individual Freedom, Inc. v. Tennant, 849 F. Supp. 2d 659 (S.D. W. Va.
In Justice v. Hosemann, 829 F. Supp. 2d 504 (N.D. Miss. 2011), a group of
friends and neighbors, who pooled their money to purchase advertising in support of
a ballot initiative, attempted to enjoin the state’s reporting and disclosure laws. The
district court upheld the state laws, distinguishing McIntyre on the grounds that
the Ohio law banned speech, whereas the Mississippi requirements focused on
expenditures. Id. at 514. In Worley v. Roberts, 749 F. Supp. 2d 1321 (N.D. Fla.
2010), the court refused to extend McIntyre to radio advertisements that a group of
four people were attempting to air anonymously. The Worley court discussed the
fact that Mrs. McIntyre acted independently of anyone else and also pointed out
that the McIntyre Court specifically limited its opinion to “only written
communications and, particularly, leaflets of the kind Mrs. McIntyre distributed.”
Id. at 1327 (quoting McIntyre, 514 U.S. at 338 n.3.)
This case is distinguishable from McIntyre in several ways. First, section
1014 is not comparable to the Ohio law at issue in McIntyre. It is a narrowly drawn
expenditure-based law dealing with express advocacy of candidates rather than
communications related to ballot initiatives. Second, Bailey was expressly
advocating the defeat of a candidate for Governor shortly before an election. Third,
the Plaintiff is no Mrs. McIntyre. Bailey is a well-known political figure in Maine
who was a paid consultant on two separate campaigns during the 2010
gubernatorial election, and who was working for an opposing candidate when he
posted the Cutler Files. Fourth, given his association with the other campaigns, it
can hardly be said that Bailey acted independently in the same sense that Mrs.
McIntyre acted. He had the assistance of the husband of another candidate from the
primary election. Fifth, the Cutler Files’s attribution claim that it was created by
individuals “not . . . affiliated with any candidate” was false. Finally, during the two
months that the Cutler Files was available online, visitors to the site made 46,989
page requests. Although the Plaintiff acted alone to post the site and spent a
relatively small amount of money to do so, his message was heard far and wide. The
State’s interest in an informed electorate is near its zenith where a widely-viewed
website falsely claiming to be written by journalists unaffiliated with any campaign
expressly advocates the defeat of an opposing candidate shortly before a state-wide
The Court concludes that Citizens United and Buckley, rather than McIntyre,
are the appropriate precedents to follow in this case. For election advocacy, the
balance between the state’s informational interest in attribution and a speaker’s
right to remain anonymous tips in the speaker’s favor when a speaker can show
that remaining anonymous is necessary to protect him from threats, harassment
and reprisals. The balance does not tip in favor of a high-profile political actor who
wishes, on the eve of an election, to criticize a gubernatorial candidate
Allowing voters to know the person responsible for political communications
so that they can judge a communication’s reliability is exactly why the Maine
legislature passed section 1014 and why the law was upheld in National
Organization for Marriage. Maine’s disclosure requirements are narrowly drawn
and the least restrictive way to further the State’s substantial informational
interest. The Plaintiff has not established facts in the record sufficient to show that
the law is unconstitutional as applied to him. The Defendants are entitled to
summary judgment on Count I.
Count III: Equal Protection Challenge to Section 1012
In Count III, the Plaintiff alleges that the Commission’s determination that
the Cutler Files was not entitled to the press exemption violated the Equal
Protection Clause of the Fourteenth Amendment,19 Article I, Section 6-A of the
Maine Constitution,20 and 42 U.S.C. § 1983. The Equal Protection Clause of the
Fourteenth Amendment prohibits states from treating similarly situated people
differently unless the state can provide a sufficiently important reason for the
The courts apply rational basis scrutiny to most laws, requiring only a
rational relationship between the law and any legitimate state purpose. E.g.
Williamson v. Lee Optical, 348 U.S. 483 (1955); Massachusetts v. U.S. Dept. of
Health and Human Servs., 682 F.3d 1, 9 (1st Cir. 2012). Laws that treat people
differently according to their race, national origin or alienage, or laws that interfere
with the exercise of a fundamental right, such as freedom of speech, must meet
strict scrutiny, which requires that the state prove that its classification is narrowly
tailored to serve a compelling government purpose. E.g. Police Dept. of City of Chi.
v. Mosley, 408 U.S. 92, 101 (1972).
The parties disagree about the appropriate level of scrutiny. The Plaintiff
argues that strict scrutiny is required because the law impinges on fundamental
rights protected by the First Amendment. The Commissioner argues that there
need only be a rational relation to a legitimate state purpose because the press
exemption does not prohibit speech, but only reduces the requirements which the
“No state shall make or enforce any law which shall . . . deny to any person within its
jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV.
“No person shall be . . . denied the equal protection of the laws, nor be denied the enjoyment
of that person’s civil rights or be discriminated against in the exercise thereof.” Maine Const. art. 1, §
6-A. The equal protection clauses of the United States Constitution and the Maine Constitution
provide co-extensive protection. Town of Frye Island v. State, 94 A.2d 1065, 1069 (Me. 2008).
press must meet in order to speak. The Court sidesteps the question of which
standard of scrutiny applies, because, as discussed below, the Plaintiff is not
similarly situated to other press entities.21
The Plaintiff’s argument begins with the premise that the press exemption
applies only to traditional media and does not apply to those who publish on the
internet or those who are not paid journalists. The Plaintiff then argues that citizen
journalists who publish on the internet are subject to a more burdensome set of
rules than the traditional media. According to the Plaintiff, since both groups are
producing the same content, i.e., news stories, commentary and editorials, the two
groups are similarly situated, and there is no adequate justification for the disparity
in the rules which apply to them.
However, the Plaintiff’s underlying premise is faulty. The press exemption on
its face does not categorically exclude internet publications from its protection.22
Nor does the exemption require that the disseminator of the communication be a
The Court notes that the press occupies a unique and important role in American
society. It “serves and was designed to serve as a powerful antidote to any abuses of power by
governmental officials and as a constitutionally chosen means for keeping officials elected by the
people responsible to all the people whom they were selected to serve.” Mills v. Alabama, 384 U.S.
214, 219 (1966). The Maine press exemption closely tracks the federal exemption, which was enacted
to ensure that news broadcasters and publishers would not be discouraged from serving their crucial
societal role by the enactment of campaign finance laws. In enacting the federal press exemption,
Congress explained that it did not want “to limit or burden in any way the first amendment
freedoms of the press” and that it wanted “to assure the unfettered right of the newspapers, TV
networks, and other media to cover and comment on political campaigns.” H.R. Rep. No. 93-1239, p.
4 (1974). See also Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 667-78 (1990), rev’d, 130
S. Ct. 876 (2010); Fed. Election Comm’n v. Phillips Publ’g, Inc., 517 F. Supp. 1308, 1312 (D.D.C.
1981) (analyzing the federal press exemption). The State’s interest in insuring that election coverage
and commentary by the press is not constrained is a compelling interest. Based on the Commission’s
interpretation of the press exemption to include news, editorial, and commentary from the internet
equivalents of broadcast stations, newspapers, magazines and periodical publications, discussed
infra, the press exemption would seem to have the requisite fit to withstand strict scrutiny.
Section 1014 expressly applies to communications contained in “publicly accessible sites on
the Internet.” 21-A M.R.S.A. § 1014(1).
paid professional journalist. Section 1012(3)(B)(1) merely provides that to fall
within the press exemption “any news story, commentary or editorial be distributed
through the facilities of any broadcasting station, newspaper, magazine or other
Nothing in the Commission Determination suggests that the Commission
excluded the Plaintiff from the press exemption because he either published on the
internet or because he was a citizen journalist. The Commission confirmed at oral
argument that it takes the position that news stories, commentaries or editorials
posted on the internet would fall within the press exemption as long as they were
disseminated by broadcasting stations, newspapers, magazines or other periodical
The Plaintiff has a difficult time understanding the concept that an internet
publication could fall within the press exemption.24 Yet the Federal Election
Commission (FEC) has interpreted its own, almost identically-worded exemption25
to include internet media for years. “[T]he media exemption applies to media
entities that cover or carry news stories, commentary, and editorials on the
The Court takes judicial notice of the fact that many of the television broadcast networks and
newspapers in Maine have online components. The Commission indicated that these facilities fall
within the press exemption.
“Web sites are not published through broadcast stations, they are not newspapers, and they
are not magazines or journals or other periodicals.” Plaintiff’s Response to Defendants’ Motions for
Summary Judgment at 9 (Doc. 78).
The federal press exemption is essentially identical to section 1012. It provides:
The term expenditure does not include . . . any news story, commentary, or editorial
distributed through the facilities of any broadcasting station, newspaper, magazine,
or other periodical publication, unless such facilities are owned or controlled by any
political party, political committee, or candidate . . . .
2 U.S.C.A. § 431(9)(B)(i).
Internet, just as it applies to media entities that cover or carry news stories,
commentary, and editorials in traditional media.” 71 Fed. Reg. 18589-01, 18609
(April 12, 2006) (“The Commission finds as a matter of law that the media
exemption applies to the same extent to entities with only an online presence as to
those with an offline component as well.”); F.E.C. Advisory Opinion 2005-16 at 5
(concluding that the Fired Up blog carrying news stories, commentary, and
editorials qualifies as a press entity for purposes of the federal press exemption
because its websites “are the online equivalent of a newspaper, magazine, or other
The Commission declined to apply the press exemption to the Cutler Files
because the Cutler Files website was not the online equivalent of a broadcast
station, newspaper, magazine or other periodical publication, not because the
Cutler Files was created by a citizen journalist and published on the internet. The
Commission found that the Cutler Files lacked the earmarks of a periodical
The content of the Cutler Files website was entirely dedicated to
the single topic of gubernatorial candidate Eliot Cutler. The website
existed for a specific and limited time only. It first appeared just prior
to the gubernatorial election and was taken down shortly before the
election. The Cutler Files website did not have any of the indicia of a
periodical publication that may be exempted from the definition of
“expenditure” in 21-A M.R.S.A. § 1012(3)(B)(1).
Commission Determination at 7 (Doc. 70-56).
In determining whether the Cutler Files was entitled to the press exemption
the Commission focused on the website’s form, which is exactly what the
Commission was required to do.26 The Supreme Court has held that an inquiry into
form is essential to determine whether a publication should be considered a
campaign advertisement or a press publication. Fed. Election Comm’n v. Mass.
Citizens for Life, Inc., 479 U.S. 238 (1986) (“MCFL”). In MCFL, an anti-abortion
advocacy organization irregularly published the “Massachusetts Citizens for Life
Newsletter,” which contained appeals for contributions and volunteers, information
on the organization’s activities, and updates on anti-abortion political activity in the
state. Prior to the September 1978 primaries, MCFL published a “special edition” of
its newsletter that endorsed certain candidates who supported the anti-abortion
cause. The Supreme Court rejected MCFL’s claim that the special edition was
entitled to the federal press exemption and exempt from FECA’s restrictions on
spending. The Court observed that the special edition was
not published through the facilities of the regular newsletter, but by a
staff which prepared no previous or subsequent newsletters . . . No
characteristic of the Edition associated it any way with the normal
MCFL publication. The MCFL masthead did not appear on the flyer,
and, despite an apparent belated attempt to make it appear otherwise,
the Edition contained no volume and issue number identifying it as
one in a continuing series of issues.
Id. at 250-51. The Court continued:
MCFL protests that determining the scope of the press exemption by
reference to such factors inappropriately focuses on superficial
considerations of form. However, it is precisely such factors that in
combination permit the distinction of campaign flyers from regular
publications. We regard such an inquiry as essential . . . .
The Court disagrees with the Plaintiff that it is inappropriate to focus on the form of the
publication. The Plaintiff argues that: “Speech is speech, news is news, and commentary is
commentary regardless of form and regardless of whether published on a continuous basis or
published only on a website.” Plaintiff’s Reply at 10 (Doc. 88).
Id. at 251.
The Commission followed the appropriate inquiry when it determined that
the Cutler Files did not fit the press exemption because it could not be considered a
“periodical publication.” The FEC has shed light on the evolution of the term
“periodical” in the federal press exemption. In 1980, “periodical publication” was
defined by the FEC as “a publication in bound pamphlet form appearing at regular
intervals (usually either weekly, bi-weekly, monthly or quarterly) and containing
articles of news, information, or entertainment.” 71 Fed. Reg. 18589-01 at 18610
(discussing FEC Advisory Opinion 1980-109 (James Hansen)). In 2006, recognizing
the need for a more “dynamic definition of periodical publication” to keep up with
changing technology, the FEC distinguished its 1980 advisory opinion stating:
with the advent of the Internet, frequent updating of the content of a
website has become commonplace and is not tied to a publishing
schedule but to the fast pace of breaking news and the availability of
information. The Commission finds that the term “periodical” within
the meaning of the Act’s media exemption ought not be construed
rigidly to deny the media exemption to entities who update their
content on a frequent, but perhaps not fixed, schedule. Nor can
“periodical publication” be restricted to works appearing in a bound,
pamphlet form . . . The Commission notes that media entities such as
WashingtonPost.com and Drudgereport.com, as well as many blogs,
are updated throughout the day and function consistent with a
dynamic definition of periodical publication.
Id. The FEC has declined to exempt all blogging activity under the federal press
exemption, noting that “an exemption for one technology-specific category would be
both too broad and too narrow: it would apply equally to blogging activity ‘that [is]
not involved in the regular business of imparting news to the public’ and
communications that are not news stories, commentary or editorials within the
meaning of the media exemption.” Id. (quoting McConnell, 540 U.S. at 208).
The Plaintiff points out that unlike the FEC, the Commission had no rules
governing the interpretation of the press exemption and that it cannot now adopt
the interpretation used by the FEC. The Court disagrees. “Agencies are not required
to promulgate rules defining every statutory term that might be called into
question. They are expected to apply statues within their expertise as cases arise.”
Cobb v. Bd. Of Counseling Prof’ls, 896 A.2d 271, 278 (Me. 2006). This is not a case
where a post hoc rationalization is being applied to justify an agency’s action. As its
Determination makes clear, the Commission withheld the press exemption from the
Plaintiff not because he published on the internet or because he was a citizen
journalist, but because his website did not meet the definition of a periodical
Finally, the Plaintiff contends that he was similarly situated to a periodical
publication and therefore should have been treated as a periodical. The Plaintiff
focuses on the fact that he updated the Cutler Files six times between August 30,
2010 and September 29, 2010. The Plaintiff also argues that he would have kept
publishing had he been allowed to continue anonymously. It is clear under MCFL
that courts must look to a combination of factors pertaining to the form of a
publication to distinguish “campaign flyers from regular publications.” MCFL, 479
U.S. at 251.
The Court finds it relevant that at the time of the publication, Bailey was a
paid political consultant for an opposing candidate. The Court also finds it pertinent
that Bailey took down the website after only two months. Bailey claims that he
discontinued the site only because the Commission would not allow him to publish
it anonymously and not because the mission of the Cutler Files was complete. At
the summary judgment stage, the Court must draw all inferences favorable to the
nonmovant, but the Court finds that the inference that Bailey asks the Court to
draw — that he only took the website down because he could not publish
anonymously — is not reasonable on this record. The evidence supports the
inference that Bailey never intended the site to run after the election. The home
page of the Cutler Files stated: “Over the next several weeks, THE SECRET FILE
ON ELIOT CUTLER will reveal the facts about his life, facts you’ll find nowhere
else, to help voters see the full picture of the man . . . .” It was clearly the goal of the
site to convince voters that Cutler was not fit to be governor, a goal that would
become moot after the election. DJSMF ¶ 129 (emphasis added). The record also
establishes that the research on Cutler was completed by the summer of 2010, and
there is no evidence that Bailey had more content ready to go or that he was
continuing to research and write additional pieces on Cutler to be posted after the
election. Finally, the record contains evidence that the website was taken down on
the day that the web hosting fees for November would have been due
This case could well have come out differently if the Cutler Files had any sort
of track record before it appeared on August 30, 2010, or if it had extended beyond
its two month run. But the undisputed facts of this case establish that the Cutler
Files was more like a negative campaign flyer than a periodical publication.27 The
website was established for the sole purpose of advocating the defeat of a single
candidate for election, and it was published immediately before an election by an
individual working for an opposing candidate. As such, it rightfully did not fall
within the press exemption for a periodical publication.28
Because there is no evidence in the record to support Plaintiff’s assertion that
the Commission treated the Plaintiff differently because he was either an unpaid
journalist or because he used the internet to post his message, and because the
Cutler Files form is far more like a negative campaign advertisement than a
periodical publication, the Defendant’s Equal Protection argument fails. The
Defendants are entitled to summary judgment on Count III.
Count IV: First Amendment Challenge to Application of
Section 1014 (the De Minimis Argument)
In Count IV, Bailey alleges that his expenditures in aggregate were de
minimis, and the application of section 1014 to his de minimis expenditure violates
the First Amendment. In contrast to the reporting requirements of section 1019-B,
At oral argument, the Commission noted that press entities who are entitled to the
exemption are not anonymous. They generally have a masthead which identifies the individuals who
are responsible for their content. The Court does not consider this factor, however, because the press
exemption itself does not contain any requirement that an entity have a masthead or that it honestly
disclose its authors, and there is no evidence in the record that those who benefit from the exemption
have all met this criteria.
As the Commission pointed out at oral argument, even the print media must follow the
disclosure requirements when they engage in campaign activity. For example, if they distribute
campaign literature as an insert, that material must comply with section 1014. 21-A M.R.S.A. §
1014(3-B). See Reader’s Digest Assoc. Inc. v. FEC, 509 F. Supp. 1210, (S.D.N.Y. 1981)(magazine
publisher acting in a manner unrelated to its publishing function would not fall within press
which has a $100 threshold, section 1014 applies to any expenditure for a qualifying
In Vote Choice, Inc. v. DiStefano, 4 F.3d 26 (1st Cir. 1993), Vote Choice, Inc.
brought a First Amendment challenge to Rhode Island’s first dollar disclosure
requirement for PAC contributions — which require disclosure for even de minimis
contributions to campaigns. The First Circuit examined the requirement and found
that the first dollar disclosure requirement did not violate free speech. The First
Circuit observed that:
[S]ignals are transmitted about a candidate’s positions and concerns
not only by a contribution’s size but also by the contributor’s identity.
Since the identity of a contributor is itself informative, quite apart
from the amount of the contribution, a candidate’s ideological interests
may often be discerned as clearly from a $1 contribution as from a
$100 contribution. Hence, we conclude that there is a substantial link
between data revealed by first dollar disclosure and the state’s
compelling interest in keeping the electorate informed about which
constituencies may command a candidate’s loyalties.
Vote Choice, 4 F.3d at 32 (citations omitted). However, “decisions about ‘the
appropriate level at which to require recording and disclosure’ are ‘necessarily . . .
judgmental’ and therefore, best left to legislative discretion. Consequently so long as
legislatively imposed limitations are not ‘wholly without rationality,’ courts must
defer to the legislative will.” Id. (quoting Buckley, 424 U.S. at 83) (citation omitted).
The First Circuit concluded that “[b]ecause the notion of first dollar disclosure is not
entirely bereft of rationality – as we have already indicated, such a requirement
relates to at least one sufficiently cogent informational goal – any general embargo
against first dollar disclosure statutes would be inconsistent with the Buckley
Court’s insistence upon judicial deference to plausible legislative judgments.” Vote
Choice, 4 F.3d at 33.
The Plaintiff points the Court to Canyon Ferry Road Baptist Church of East
Helena, Inc. v. Unsworth, 556 F.3d 1021 (9th Cir. 2009), where the Ninth Circuit
upheld a challenge to Montana’s reporting requirements for political committee
expenditures as applied to a de minimis economic effort in support of a ballot
initiative. The disclosure requirements at issue were justified by the state’s
informational interests, id. at 1032, but the Ninth Circuit ultimately concluded that
as applied to the church’s de minimis in-kind expenditure the disclosure
requirements were unconstitutional. At issue was whether the use of the Church’s
facilities to obtain signatures for a referendum on the definition of marriage and the
pastor’s time spent urging members of the church to sign the petition constituted an
As a matter of common sense, the value of this financial information to
the voters declines drastically as the value of the expenditure or
contribution sinks to a negligible level. As the monetary value of an
expenditure in support of a ballot issue approaches zero, financial
sponsorship fades into support and then into mere sympathy.
Id. at 1033. The Ninth Circuit focused on the fact that the case involved in-kind
expenditures. It added that “we are not concerned with – and express no view about
– the constitutionality of Montana’s disclosure requirements in the context of
candidate elections or as applied to monetary contributions of any size.” Id. at 1034.
See Family PAC v. McKenna, 685 F.3d 800, 810 (9th Cir. 2012) (“we are not aware of
any judicial decision invalidating a contribution disclosure requirement, or holding
that a contribution disclosure threshold was impermissibly low”).
The Court does not foreclose the possibility that in the appropriate case an
expenditure could be so de minimis that application of the disclosure requirements
would not be constitutional, but this is not that case. The Plaintiff’s expenditures
for the Cutler Files were over $90.29 The Plaintiff has failed to establish facts
sufficient to support a reasonable inference that the Cutler Files website
represented a de minimis expenditure. The Defendants are entitled to summary
judgment on Count IV.
Count II & V: Review of Agency’s Decisions
Standard of Review – 80C Appeal
For purposes of Counts II and V, the Plaintiff’s appeal of the Commission’s
actions under Maine Rule of Civil Procedure 80C, the Court acts in a quasiappellate capacity and is limited to the agency record. 5 M.R.S.A. § 11006
(“[j]udicial review shall be confined to the record upon which the agency decision
was based”); Me. R. Civ. P. 80(C)(d). The Court may reverse or modify an agency’s
decision where the
[A]dministrative findings, inferences, conclusions or decision are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority of the agency;
(3) Made upon unlawful procedure;
(4) Affected by bias or error of law;
Section 1019-B places a significant reporting burden on persons making expenditures over
$100. The Plaintiff argues that because § 1019-B has a $100 threshold, an expenditure under § 1014
under $100 is de minimis. This argument mixes apples and oranges and completely disregards the
State’s recordkeeping interest.
(5) Unsupported by substantial evidence on the whole record; or
(6) Arbitrary or capricious or characterized by abuse of discretion.
5 M.R.S.A. § 11007(4)(C). “In reviewing the decisions of an administrative agency,
we do not attempt to second-guess the agency on matters falling within its realm of
expertise and limit our review to determining whether the agency’s conclusions are
unreasonable, unjust or unlawful in light of the record.” Imagineering, Inc. v.
Superintendent of Ins., 593 A.2d 1050, 1053 (Me. 1991).
In Count II of the Complaint, the Plaintiff alleges that the Commission’s
determination that the Cutler Files was not entitled to the press exemption was in
excess of the Commission’s statutory authority, an error of law, and arbitrary and
capricious. In Count V, the Plaintiff alleges that the Commission made a legal error
and abused its discretion because it penalized Bailey for not stating that the Cutler
Files website was not authorized by a candidate even though Bailey cured the defect
within 10 days of notice from the Commission.
Count II: Commission’s Press Exemption Determination
Under 5 M.R.S.A. 11007(4)(C)
1. Excess of Statutory Authority
The Commission’s duties include the administration and investigation of “any
violations of the requirements for campaign reports and campaign financing.” 1
M.R.S.A. §1008. “The commission may undertake audits and investigations to
determine the facts concerning . . . expenditures by a person, candidate, treasurer,
political committee or political action committee.” 21-A M.R.S.A. § 1003. The
Commission also has the authority to assess monetary penalties authorized in
chapter 13, which includes section 1014. 21-A M.R.S.A. § 1004-A. The Commission
did not exceed its statutory authority.
Error of Law
Before the Court is the Commission’s interpretation of the press exemption
and its conclusion that “[t]he Cutler Files website did not have any of the indicia of
a periodical publication that may be exempted from the definition of ‘expenditure’ in
21-A M.R.S.A. § 1012(3)(B)(1).” Commission Determination at 7.
When a case concerns the interpretation of a statute that an
administrative agency administers and that is within its area of
expertise, our scope of review is to determine first whether the statute
is ambiguous. If the statute is unambiguous, we do not defer to the
agency’s construction, but we interpret the statute according to its
plain language. If the statute is ambiguous, we defer to the agency’s
interpretation, and we affirm the agency’s interpretation unless it is
Cobb, 896 A.2d at 275 (citations omitted). “Agencies are not required to promulgate
rules defining every statutory term that might be called into question. They are
expected to apply statutes within their expertise as cases arise.” Id. at 278. As
previously discussed, the Court agrees with the Commission’s determination that
the Cutler Filers was not a periodical publication.
Arbitrary and Capricious
The Plaintiff also challenges the Commission’s factual findings as arbitrary
and capricious. Administrative findings of fact are not “arbitrary and capricious” if
they “are supported by substantial evidence in the record, even if the record
contains inconsistent evidence or evidence contrary to the result reached.” Friends
of Lincoln Lakes v. Bd. of Envtl. Prot., 989 A.2d 1128, 1133 (Me. 2010). “An
administrative decision will be sustained if, on the basis of the entire record before
it, the agency could have fairly and reasonably found the facts as it did. The issue
before us is not whether we would have reached the same conclusion as the agency,
‘but whether the record contains competent and substantial evidence that supports
the result reached.’” CWCO, Inc. v. Superintendent of Ins., 703 A.2d 1258, 1261 (Me.
1997) (quoting In re Maine Clean Fuels, Inc., 310 A.2d 736, 741 (Me. 1973))
(citations omitted). The Court can only vacate the agency’s facts if the record
“compels contrary findings.” Kroeger v. Dep’t of Envtl. Protection, 970 A.2d 566, 569
In its findings of fact, the Commission concluded that the Cutler Files
website did not have “any of the indicia of a periodical publication that may be
exempted from the definition of ‘expenditure’ in 21-A M.R.S.A. § 1012(3)(B)(1).”
Commission Determination at 7. To support this conclusion, the Commission found
that “[t]he website existed for a specific and limited time only. It appeared just prior
to the gubernatorial election and was taken down shortly before the election.” Id.
The Commission found that “[a]dditional pages on different topics were added in the
weeks leading up to the November 2, 2010 general election.” Id. at 3. The
Commission also found that “the website had no other reasonable meaning than to
urge Cutler’s defeat,” and “was entirely dedicated to the single topic of
gubernatorial candidate Eliot Cutler.” Id. at 4, 7. There is competent evidence in the
record to support the Commission’s finding that the Cutler Files was not a
periodical publication. The Court concludes that the Commission’s factual
conclusions were based on competent evidence in the record and were not arbitrary
In Count V, the Plaintiff claims that the Commission made an error of law
and abused its discretion because it penalized Bailey for failing to comply with
Section 1014’s disclosure requirements even though he cured the violation within
ten days of being notified by the Commission. The Court need not reach this claim
because the Commission’s $200 penalty was supported by its finding that Bailey
violated the attribution requirement in violation of sections 1014(2) and (2-A).
The Plaintiff has failed to establish evidence in the record sufficient for a
reasonable jury to find for him on Counts I, III, or IV. Defendant Commission and
Defendant-Intervenor Cutler’s Motions for Summary Judgment on these counts is
hereby GRANTED and Plaintiff’s Motion for Summary Judgment on these counts
is DENIED. The Plaintiff has also failed to establish any entitlement to reversal of
Defendant-Intervenor Cutler’s Motions for Summary Judgment on Counts II and V
are hereby GRANTED and Plaintiff’s Motion for Summary Judgment on these
counts is DENIED.
/s/ Nancy Torresen
United States District Judge
Dated this 30th day of September, 2012.
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