Corren v. Sorrell

Filing 58

OPINION AND ORDER denying 2 Motion for Preliminary Injunction; granting 43 Motion to Dismiss for Failure to State a Claim; this case is dismissed without prejudice to re-filing in the event that the state courts offer an interpretation of the statute that is inconsistent with this Opinion and Order. Signed by Judge William K. Sessions III on 3/9/2016. (jam)

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
DEAN CORREN, the VERMONT
PROGRESSIVE PARTY, STEVEN
HINGTGEN, RICHARD KEMP,
and MARJORIE POWER,
Plaintiffs,
DAVID ZUCKERMAN,
Intervenor/Plaintiff,
v.
WILLIAM SORRELL, Vermont
Attorney General in his
official capacity, and
JAMES CONDOS, Vermont
Secretary of State in his
official capacity,
Defendants.

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Case No. 2:15-cv-58

OPINION AND ORDER
Plaintiffs are challenging the constitutionality of
Vermont’s campaign finance law as it pertains to publiclyfinanced candidates.

In a related case, the Vermont Attorney

General’s office has brought an enforcement action against
Plaintiff Dean Corren alleging campaign finance law violations.
That case is ongoing in state court.

Currently pending in this

Court are Plaintiffs’ motion for preliminary injunctive relief
and Defendants’ motion to dismiss.

For the reasons set forth

below, the motion for preliminary injunctive relief is denied,
the motion to dismiss is granted, and the case is dismissed
without prejudice to refiling.

Briefly stated, the Court finds no constitutional infirmity
with the Vermont statute so long as it is construed as allowing
supporters to associate and communicate with publicly-funded
candidates consistent with the intent of the Vermont Legislature.
If the state courts construe the law in a way that significantly
restricts those communications, Plaintiffs may re-file their
objections so that this Court can revisit the constitutionality
of the entire public financing scheme.
Factual Background
I.

Public Financing In Vermont
Since 1997, Vermont has offered political candidates the

option of financing their campaigns with public funds.

To be

eligible for such funding, candidates must first raise a certain
amount in qualifying contributions.

If they are able to meet the

qualifying threshold, candidates may then receive public funds in
amounts fixed by the Legislature.
A publicly-funded candidate must abide by certain
restrictions.

Generally speaking, those restrictions fall into

four categories: (1) contribution limits; (2) spending limits;
(3) related expenditures; and (4) the time period during which
candidates may raise qualifying funds.

All of these provisions

are anchored in a legitimate governmental concern.

Because

public financing is premised upon the desire to avoid the
potentially-corrupting influence of private donations, limits on

2

private contributions are a centerpiece of any such legislation.
Spending beyond the funding grant is also a fundamental
restriction.

The related expenditures limitation forbids certain

coordinated efforts between candidates and supporters that might
undermine the contribution and spending limitations.

Finally,

the qualifying period requires candidates to wait until a certain
date (in the 2016 election year, that date was February 15) to
announce their intention to use public funds and begin soliciting
qualifying contributions.

Defendants contend that this

restriction is necessary to ensure that only viable candidates
receive public money.
A broad reading of the public financing law, including the
limited restrictions, reveals the Legislature’s effort to protect
the rights of supporters to speak and associate freely with
publicly-funded candidates.

For example, while publicly-funded

candidates are not allowed to accept private contributions beyond
the initial qualifying funds, see 17 V.S.A. § 2983(b)(1), the
term “contribution” has numerous exemptions.

Specifically, the

statute exempts volunteer activities; the use of political party
offices, telephones, computers and similar equipment; access to
party voter lists and voter identification information; campaign
training sessions if three or more candidates are present;
political party payment for an event attended by three or more
candidates; and party efforts to encourage voters to register

3

and/or vote so long as a specific candidate’s name is not
mentioned.

17 V.S.A. § 2901(4).

The legislative findings

highlight the constitutional significance of these exemptions:
Exempting certain activities of political parties from
the definition of what constitutes a contribution is
important so as not to overly burden collective
political activity. Those activities, such as using
the assistance of volunteers, preparing candidate
listings, and hosting certain campaign events, are part
of a party’s traditional role in assisting candidates
to run for office. Moreover, these exemptions help
protect the right to associate in a political party.
Vt. Act 90, S.82, Sec. 1, ¶ 10.
A fundamental issue in this case is the relationship between
the exemptions in Section 2901(4) and the scope of the term
“contribution” elsewhere in the public financing statute.

For

example, an expenditure by a third party on behalf of a candidate
is considered a “contribution” if the expenditure is
“intentionally facilitated by, solicited by or approved by” the
candidate or the candidate’s campaign committee.
2944(a), (b).

17 V.S.A. §§

If a publicly-funded candidate were to solicit or

accept such a “contribution,” that might be considered a
violation of the candidate’s pledge to accept only qualifying and
public funds.

See 17 V.S.A. § 2983(b)(1).

However, if the

exemptions in Section 2901(4) apply to Sections 2944 and
2983(b)(1), there would be no “contribution” and thus no
violation.
Defendants’ briefing concedes that the exemptions in Section

4

2901(4) apply to “in-kind” contributions.
27.

See ECF No. 43-1 at

Plaintiffs maintain that the Attorney General’s enforcement

actions are inconsistent with this concession.
10-11.

See ECF No. 48 at

Plaintiff Dean Corren testified that he was told by the

Attorney General’s office that he had “no right to communicate
with the Democratic Party whatsoever,” and that as a result he
did not “dare pick up the phone” to speak with party officials.
ECF No. 55 at 18-20.

Other hearing testimony revealed that

campaign workers were similarly wary of communicating with
supporters for fear of committing a statutory violation.
Accordingly, Plaintiffs seek a ruling as to the extent of the
Section 2901(4) exemptions.
II.

ECF No. 48 at 10-11.

The Enforcement Action Against Dean Corren
In 2014, Dean Corren ran for office as a publicly-financed

candidate for Lieutenant Governor.

Corren was eligible to

receive public financing if he first raised at least $17,500 from
not fewer than 750 individuals, with each contribution not to
exceed $50.

17 V.S.A. § 2984(a)(2).

In raising this initial

sum, Corren was allowed spend up to $2,000 of his own money or
private contributions as seed money, and qualifying contributions
thereafter.

Id. § 2983(a).

The public financing grants then

offered up to $32,500 for the primary election period and
$150,000 during the general election period, amounting to a
potential total of $200,000 in campaign funds.

5

Id. § 2985(b)(2).

Corren qualified for public financing for both the primary and
the general elections, and received over $180,000 in campaign
finance grants.
While the Corren campaign was under way, the Vermont
Attorney General’s office received a complaint that the campaign
had accepted an unlawful, in-kind contribution in the form of an
October 24, 2014 email sent by the Vermont Democratic Party
(“VDP”).

The email was sent by Dottie Deans, chair of the VDP,

and was entitled “How you can help me help Dean Corren.”

A

Corren staff member had sent the VDP proposed wording for the
email, and portions of that wording were used in the final
communication.
Both the VDP and the Corren campaign were aware that the
email had value, and made efforts, including consultations with
counsel, to remain in compliance with the public financing
statute.

The Corren campaign offered two suggestions for

compliance: (1) pay the VDP for the value of the email, or (2)
avoid the related expenditure presumption by mentioning more than
six candidates.

ECF No. 2-2 at 26.1

The VDP informed the Corren

campaign that it would pursue the latter option.
The final version of the email stated in relevant part:
Many of you know I’m a strong supporter of Dean Corren

1

An expenditure made by a political party is presumed to be
“related” if it primarily benefits six or fewer candidates. Id. §
2944(c)(1).

6

for Lt. Governor but maybe you don’t know why. Dean
has the skills and experience to support our Vermont
Democratic Party Platform and overcome some of the
greatest challenges we face.
. . .
I believe Dean would make an excellent Lt. Governor,
but to make this happen we all need to pitch in. Here
are a few ways you can help.
1. Come to a Rally! This weekend we are joining
Senator Bernie Sanders, Governor Peter Shumlin, Dean
and local candidates at four [Get Out The Vote] rallies
across the state. [The email went on to list four
rallies in Bristol, Proctor, Hinesburg, and St.
Albans.]
. . .
3. Tell Your Neighbors! We are working every day to
talk to voters in Vermont into getting to the polls on
Election Day. Sign up to volunteer for a shift here.
For other ways to help, please email
[e-mail]
I appreciate all the work you are doing on behalf of
our candidates around the state and look forward to
celebrating great victories with you on the 4th. Now
get out and vote for Congressman Peter Welch, Governor
Peter Shumlin, Dean Corren for Lieutenant Governor, and
the rest of our amazing Democratic ticket!
ECF No. 1-1.
On October 30, 2014, the Attorney General’s office notified
the Corren campaign and the VDP that the October 24, 2014 email
constituted an uncompensated contribution in violation of Vermont
campaign finance law.

Specifically, the Attorney General

contended that the email was a related campaign expenditure
because it was intentionally solicited and facilitated by the
campaign.

ECF No. 2-2 at 11.

The alleged value of the
7

contribution – representing the value of the email list – was
$255.
After conducting an investigation, the Attorney General’s
office provided Corren with a draft of a civil enforcement
pleading it was prepared to file in state court.

The state court

action would seek $20,000 in fines and the return of the
approximately $52,000 in public funds that the Corren campaign
had in its accounts as of the date of the email.

Corren disputed

the alleged violation, and alternatively offered to pay the $255
value of the email list.

That offer was reportedly rejected.

As

of December 12, 2014, the Corren campaign had spent all of its
campaign funds with the exception of $73.60, which was returned
to the State.
On March 25, 2015, the Attorney General’s office filed an
enforcement action against Corren in Vermont Superior Court.
No. 2-2 at 1-14.2

ECF

As the Attorney General had warned, the action

alleged a related expenditure and sought $20,000 in fines as well
as a refund of the $52,000 in public funds held by the Corren
campaign as of October 24, 2014.
Procedural History
I.

Federal Court Filings
On March 20, 2015, shortly before the State filed its

2

The Attorney General’s office previously reached a settlement
with the Vermont Democratic Party.

8

enforcement action, Corren brought suit in this Court challenging
the constitutionality of various portions of Vermont’s campaign
finance law.

Corren also moved for preliminary injunctive

relief, in part to prevent the State from prosecuting the
enforcement action.
Attorney General Sorrell, as the sole Defendant at the time
of the original Complaint, moved the Court to abstain from
hearing the case in light of the state court enforcement
proceeding.

When Corren amended his Complaint to add several

additional Plaintiffs, the Attorney General again moved to
dismiss, arguing both for abstention and that the newly-added
Plaintiffs lacked standing.

After the Court held a hearing on

the motions to dismiss, Plaintiffs filed their Second Amended
Complaint, in part to supplement their factual allegations in
response to the Court’s questions about standing.

The Attorney

General responded with a third motion to dismiss.
On December 8, 2015, the Court issued an Opinion and Order
granting in part and denying in part the motion to dismiss the
Second Amended Complaint, and denying the prior motions to
dismiss as moot.

The Court held that it would abstain from

hearing Corren’s challenges to Vermont’s campaign finance law
insofar as those challenges related to the enforcement action,
but would be able to address Corren’s other, unrelated
allegations.

The Court further held that the Plaintiffs had

9

standing to bring the bulk of their claims, some of which
overlapped with Corren’s initial allegations.
II.

The Second Amended Complaint
The effective pleading before the Court remains the Second

Amended Complaint.

Plaintiffs include Corren, the Vermont

Progressive Party (“VPP”), Steven Hingtgen, Richard Kemp, and
Marjorie Power.

Hingtgen, Kemp, and Power are each former

Progressive Party candidates and past political contributors.
David Zuckerman, a 2016 candidate for Lieutenant Governor, has
been granted leave to intervene as a Plaintiff and has filed his
own pleading.
The Second Amended Complaint currently contains three
counts.3

Count I challenges the constitutionality of 17 V.S.A. §

2983(b)(1), which makes it unlawful for a publicly-funded
candidate to solicit, accept, or expend campaign contributions or
make expenditures aside from the public financing grant or the
qualifying funds.

Plaintiffs contend that the statute

effectively bars nearly all assistance from political parties,
thereby violating the association rights of both the parties and

3

Count IV sought injunctive relief from enforcement of the
refund provision set forth at 17 V.S.A. § 2903(b). The Vermont
Legislature recently amended Section 2903(b). See 2015 Vt. Acts &
Resolves, No. 30. The statute currently calls for the refund of “an
amount equivalent to any contributions or expenditures that violate
subdivision 2983(b)(1) of this chapter.” 17 V.S.A. § 2903(b).
Because Corren sought relief under the prior version of the law, the
Court dismissed Count IV without prejudice.

10

the candidates.

Plaintiffs further allege that the bar runs

afoul of the ruling in Randall v. Sorrell, 548 U.S. 230 (2006),
which held that Vermont could not prohibit contributions of less
than $400 to candidates for statewide office.

Id. at 264-65.

Plaintiffs also note that as of 2015, Vermont allows
traditionally-funded candidates to receive unlimited
contributions from political parties.

By limiting a publicly-

funded candidate’s spending to the amount of the public grant,
Section 2983(b)(1) allegedly puts that candidate at a
disadvantage when facing a well-financed opponent.

The solution,

Plaintiffs argue, is a “rescue” provision that would allow
publicly-funded candidates to raise additional private funds if
necessary.
Count II attacks the constitutionality of the related
expenditures provision, arguing that it violates the rights of
association of both the publicly-funded candidates and their
parties.

Count II also challenges the presumption that an

expenditure benefitting six or fewer candidates is “related.”
Count III claims that the related expenditures provision, as
currently being enforced by the Attorney General, puts political
parties and their supporters at risk of prosecution if they fail
to report even exempted activities as contributions.

This threat

of enforcement allegedly creates a chilling effect on the speech
and associational rights of publicly-funded candidates, political

11

parties, and party members.

Count III further alleges that the

October 24, 2014 email from the VDP was not a campaign
contribution because (1) it was sent on a party computer, and (2)
it applied to an event at which three or more candidates were
present.

See 17 V.S.A. §§ 2901(4)(F), (L).

III. Zuckerman’s Complaint
Intervenor/Plaintiff David Zuckerman’s pleading names both
the Attorney General and Secretary of State James Condos as
Defendants.

In Count I, Zuckerman challenges the rule forbidding

a publicly-financed candidate from announcing his candidacy or
expending more than $2,000 prior to February 15, 2016.
V.S.A. § 2983(a).

See 17

Zuckerman claims that this provision

constitutes a bar on his political speech, and puts him at a
“substantial practical disadvantage” when compared to
traditionally-financed candidates who are not so restricted.
No. 40 at 2.

ECF

Count II of Zuckerman’s pleading largely echoes the

challenge to 17 V.S.A. § 2983(b)(1) (limiting contributions and
expenditures to the amount of the public grant and any qualifying
contributions) asserted in Count I of the Second Amended
Complaint.4

4

Although Zuckerman’s pleading seeks both preliminary and
permanent injunctive relief, as well as a declaratory judgment, he has
not filed a preliminary injunction motion. Plaintiffs incorporated
Zuckerman’s memorandum in support of his motion to intervene into
their reply memorandum regarding the preliminary injunction motion.
ECF No. 48 at 2. Nonetheless, the Court has not received a
preliminary injunction motion that includes Zuckerman as a movant.

12

Discussion
I.

Legal Standards
The Attorney General and the Secretary of State have moved

to dismiss both the Second Amended Complaint and Zuckerman’s
pleading.

ECF No. 43-1 at 2 n.1.

Defendants submit their motion

to dismiss pursuant to Fed. R. Civ. P. 12(b)(6).

In deciding a

Rule 12(b)(6) motion to dismiss, the Court applies a
“plausibility standard,” which is guided by “[t]wo working
principles.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)(citing

Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)); accord Harris
v. Mills, 572 F.3d 66, 71-72 (2d Cir. 2009).

First, although the

Court must accept all factual allegations as true, this tenet is
“inapplicable to legal conclusions;” thus, “[t]hreadbare recitals
of the elements of a cause of action supported by mere conclusory
statements, do not suffice.”

Iqbal, 556 U.S. at 678.

Second,

only pleadings that state a “plausible claim for relief” can
survive a Rule 12(b)(6) motion to dismiss.

Id. at 679.

Determining whether a pleading does so is “a context-specific
task that requires the reviewing court to draw on its judicial
experience and common sense.”

Id.

For any claims that survive the motion to dismiss, the Court
will apply the standards for preliminary injunctive relief.
Generally, to obtain a preliminary injunction a party must
demonstrate “‘(1) irreparable harm in the absence of the
13

injunction and (2) either (a) a likelihood of success on the
merits or (b) sufficiently serious questions going to the merits
to make them a fair grounds for litigation and a balance of
hardships tipping decidedly in the movant’s favor.’”
MyWebGrocer, L.L.C. v. Hometown Info., Inc., 375 F.3d 190, 192
(2d Cir. 2004) (quoting Merkos L’Inyonei Chinuch, Inc. v. Otsar
Sifrei Lubavitch, Inc., 312 F.3d 94, 96 (2d Cir. 2002)).
However, where “the moving party seeks to stay government action
taken in the public interest pursuant to a statutory or
regulatory scheme,” as in this case, “the district court should
not apply the less rigorous fair-ground-for-litigation standard”
and should instead require a likelihood of success on the merits.
Able v. United States, 44 F.3d 128, 131 (2d Cir. 1995); see Jolly
v. Coughlin, 76 F.3d 468, 473 (2d Cir. 1996).
II.

Motion to Dismiss
A.

Guiding Principles

In Buckley v. Valeo, the Supreme Court ruled that public
financing may be used “to facilitate and enlarge public
discussion and participation in the electoral process, goals
vital to a self-governing people.”

424 U.S. 1, 92-93 (1976).

The Supreme Court also noted that offering public money to
political campaigns constitutes “a means of eliminating improper
influence of large private contributions.”

Id. at 96.

Accordingly, public financing of political campaigns is a
14

recognized means of promoting legitimate governmental interests.
As discussed above, public financing in Vermont comes with
certain restrictions.

When designing a public financing scheme,

a legislature may impose restrictions that “would normally be
impermissible” under traditional constitutional standards.
Ognibene v. Parkes, 671 F.3d 174, 193 (2d Cir. 2011).

The scheme

may not, however, completely disregard constitutional
requirements.

See, e.g., Daggett v. Comm'n on Governmental

Ethics & Election Practices, 205 F.3d 445, 466 (1st Cir. 2000)
(“Although public financing is not inherently unconstitutional,
it may be so if it ‘burdens the exercise of political speech’ but
is not ‘narrowly tailored to serve a compelling state
interest.’”) (citing Austin v. Michigan Chamber of Commerce, 494
U.S. 652, 657 (1990) (quoting Buckley, 424 U.S. at 44-45)).
Indeed, “the goal of creating a viable public financing scheme
can only be pursued in a manner consistent with the First
Amendment.”

Arizona Free Enter. Club's Freedom Club PAC v.

Bennett, 131 S. Ct. 2806, 2828 (2011) (hereinafter “Arizona Free
Enterprise”).
In construing Vermont’s public financing statute, this Court
is guided by some fundamental principles.

First, when

interpreting a statute that has yet to be adjudicated in the
state courts, a federal court must “carefully . . . predict how
the state’s highest court would resolve” the issues before it.
15

Maska U.S., Inc. v. Kansa Gen. Ins. Co., 198 F.3d 74, 78 (2d Cir.
1999) (internal quotation marks omitted); see Plummer v. Lederle
Laboratories, 819 F.2d 349, 355 (2d Cir.), cert. denied, 484 U.S.
898 (1987) (“if there is no direct decision by the highest court
of that state, the federal court should determine what it
believes that state’s highest court would find if the issue were
before it.”).

Here, there is a concurrent proceeding in the

state courts, but neither the lower court nor the Vermont Supreme
Court has issued an opinion on the constitutional issues raised
by the Plaintiffs.
Second, “where an otherwise acceptable construction of a
statute would raise serious constitutional problems,” the Court
must “construe the statute to avoid such problems unless such
construction is plainly contrary to the intent of [the
legislature].”

United States v. Magassouba, 544 F.3d 387, 404

(2d Cir. 2008) (internal quotation marks omitted).

This canon of

construction is a “tool for choosing between competing plausible
interpretations of a statutory text, resting on the reasonable
presumption that [the legislature] did not intend the alternative
which raises serious constitutional doubts.”

Clark v. Martinez,

543 U.S. 371, 381 (2005); cf. United States v. Five Gambling
Devices, 346 U.S. 441, 448 (1953) (“The principle is old and
deeply imbedded in our jurisprudence that this Court will
construe a statute in a manner that requires decision of serious
16

constitutional questions only if the statutory language leaves no
reasonable alternative.”).
Finally, the Court must look not only at the specific
statutory language, but also at the design of the statute, its
object, and the underlying policy.

See Crandon v. United States,

494 U.S. 152, 158 (1990).
B.

Plaintiffs’ Challenges

Plaintiffs raise a series of constitutional challenges,
arguing that Vermont’s restrictions on publicly-financed
candidates unlawfully impinge upon the speech and association
rights of those candidates and their supporters.

Their arguments

focus in large part upon communications with political parties,
as association with a political party has been deemed “a
particularly important right.”

Randall, 548 U.S. at 256.

Defendants contend that so long as candidates voluntarily choose
public financing, there is no need to consider their
constitutional rights.

See, e.g., Rosenstiel v. Rodriguez, 101

F.3d 1544, 1552-53 (8th Cir. 1996); Vote Choice, Inc. v.
DiStefano, 4 F.3d 26, 39 (1st Cir. 1993).

Setting aside the

question of voluntariness, the Court finds that Vermont’s public
financing system, broadly construed, does not impose
unconstitutional limitations on speech and association rights.
i.

Contribution Limits

With respect to contribution limits, the Vermont scheme bars

17

private contributions to candidates who are receiving public
funds.

The Supreme Court has consistently upheld contribution

limits, and Buckley specifically concluded with regard to public
financing that “laws providing financial assistance to the
exercise of free speech . . . enhance [] First Amendment values.”
Id. at 93 n. 127.

Limits on private contributions go to the very

purpose of public financing, and the Court finds that Vermont’s
system is constitutional in this regard.5
ii.

Expenditure Limits

The statute also limits campaign expenditures.

Although

such limits are often struck down, see, e.g., Randall, 548 U.S.
at 246, public financing is the exception.

See Buckley, 424 U.S.

at 57 n.65 (noting that Congress “may engage in public financing
of election campaigns and may condition acceptance of public
funds on an agreement by the candidate to abide by specified
expenditure limitations”).

Plaintiffs nonetheless assert that

Vermont’s limits are unconstitutional because publicly-funded
candidates cannot compete against well-funded opponents.

Their

proposed solution is for the Court to rewrite the statute such
that a publicly-financed candidate may raise funds beyond those
allowed by statute “to the extent that a publicly financed

5

Although Plaintiffs challenge the limit on private
contributions as violating Randall’s declaration that a limit of $400
for political parties is unconstitutionally low, Randall did not
address Vermont’s “voluntary public financing system.” 548 U.S. at
239.

18

candidate is being outraised or outspent by an opponent, and only
to that extent.”

ECF No. 56 at 4.

When public financing first became available in Vermont in
1997, state law limited spending by all political candidates.
The Supreme Court later held that those universal expenditure
limits were unconstitutional.

See Randall, 548 U.S. at 264-65.

Limits on spending by publicly-funded candidates, however,
survived the Randall decision.

Consequently, Plaintiffs now

argue that without corresponding limits on traditionally-funded
candidates, publicly-financed candidates run a substantial risk
of being outspent.
Plaintiffs further contend that the danger of being outspent
is greater in the aftermath of Citizens United v. FEC, 558 U.S.
310 (2010).

Citizens United struck down a statute that prevented

corporations from making expenditures for electioneering
communications.

558 U.S. at 372.

Plaintiffs argue that since

only traditionally-funded candidates may benefit from such
corporate spending, Citizens United will result in an even
greater imbalance between those candidates and their publiclyfunded opponents.
What the Plaintiffs are seeking is essentially a judiciallymandated leveling of the financial playing field.

It is well

established, however, that a candidate has no right to a level
playing field with respect to fundraising.

19

See Arizona Free

Enterprise, 131 S. Ct. at 2825-26.

In fact, legislative efforts

to provide equal financing to candidates have been invalidated as
unlawful restrictions on the opponent’s speech.

See id.

As

Chief Justice Roberts explained in 2011,
We have repeatedly rejected the argument that the
government has a compelling state interest in “leveling
the playing field”•that can justify undue burdens on
political speech. See, e.g., Citizens United, 130 S.
Ct. at 904-05. In Davis [v. Fed. Elec. Comm’n], we
stated that discriminatory contribution limits meant to
“level electoral opportunities for candidates of
different personal wealth” did not serve “a legitimate
government objective,” let alone a compelling one. 554
U.S. [724,] 741 [(2008)] (internal quotation marks
omitted). And in Buckley, we held that limits on
overall campaign expenditures could not be justified by
a purported government “interest in equalizing the
financial resources of candidates.” 424 U.S. at 56;
see id., at 56-57. After all, equalizing campaign
resources “might serve not to equalize the
opportunities of all candidates, but to handicap a
candidate who lacked substantial name recognition or
exposure of his views before the start of the
campaign.”• Id. at 57.
. . .
“Levelling the playing field” can sound like a good
thing. But in a democracy, campaigning for office is
not a game. It is a critically important form of
speech. The First Amendment embodies our choice as a
Nation that, when it comes to such speech, the guiding
principle is freedom – “the unfettered interchange of
ideas” – not whatever the State may view as fair.
Buckley, supra, at 14 (internal quotation marks
omitted).
Id.
Plaintiffs seek to distinguish Arizona Free Enterprise and
Davis by noting that the challenged provisions in those cases
triggered additional public funds, while the proposed rescue
20

provision here would allow for additional private funds.

In both

situations, however, the Legislature would be making a statesponsored effort toward level financing.

Furthermore, rewriting

the statute as Plaintiffs request is beyond this Court’s power,
as the Court may only consider the constitutionality of each
provision.

See Virginia v. Am. Booksellers Ass’n, Inc., 484 U.S.

383, 397 (1988) (“we will not rewrite a state law to conform it
to constitutional requirements”).

Finally, such a revision to

the statute would seriously erode the purpose of public financing
by re-introducing the potentially-corrosive effects of private
contributions.6
iii. Related Expenditures
With respect to the constitutionality of the related
expenditure provision, that question was settled in Landell v.
Sorrell, 118 F. Supp. 2d 459, 492 (D. Vt. 2000), aff’d 382 F.3d
91, 146 (2d Cir. 2004), rev’d on other grounds by Randall, 548
U.S. at 262-63.

There, plaintiffs argued that the phrase

“facilitated” was vague, and that political parties and political
action committees (“PACs”) “should have greater abilities to
engage in coordinated expenditures with candidates.”
6

382 F.3d at

Because the Court cannot rewrite the statute to place limits
on additional fundraising, striking down Section 2983(b)(1) would
allow publicly-financed candidates to raise private funds without
limitation. In that event, all candidates would likely apply for
public financing, as the public funds would enhance their campaign
accounts without any limitation on private fundraising. That result
would render public financing meaningless, since public funds would be
just another means of funding a traditional campaign.

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145.

Plaintiffs also challenged the rebuttable presumption that

an expenditure is related if six or fewer candidates receive the
benefit.
Affirming this Court’s ruling, the Second Circuit read the
statute narrowly and found no ambiguity; rejected the claim that
parties and PACs should be treated differently; and upheld the
rebuttable presumption given that an accused party could
demonstrate that “the expenditure was truly independent from the
candidate it supported.”

Id. at 145-46.

The Supreme Court’s

reversal on appeal did not reach those issues.

In his dissent,

however, Justice Souter did remark that with respect to the
rebuttable presumption, “[r]equiring the party in possession of
the pertinent facts to come forward with them” does not “rise to
the level of a constitutionally offensive encumbrance.”

Id. at

290.
The Court is nonetheless concerned that the term
“contribution” in the related expenditures provision, improperly
construed, might nullify the exemptions set forth in 17 V.S.A. §
2901(4).

Those exemptions were added, in part, so that political

parties could engage in their traditional role of actively
supporting candidates, and to protect the constitutional right to
associate in a political party.

If that support is considered a

“related campaign expenditure,” and in turn a forbidden
contribution, political parties and other supporters will likely

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be foreclosed from providing fundamental assistance to candidates
who have pledged to receive, and expend, only public funds.
In Landell, the Second Circuit construed the related
expenditure provision narrowly, citing principles of
constitutional avoidance.

382 F.3d at 145-46 (citing WILLIAM

ESKRIDGE, LEGISLATION: STATUTES AND THE CREATION OF PUBLIC POLICY 873–89 (3d
ed. 2001)).

Here too, the related expenditure provision – and

ultimately the bar on soliciting contributions set forth in
Section 2983(b)(1) – must be read narrowly in order to address
any potential statutory conflict and avoid the potential
constitutional issue.

To bring the statutory provisions into

harmony, and as apparently conceded by the Defendants in their
briefing, the contribution exemptions in Section 2901(4) must
apply throughout the statute.

Accordingly, a related expenditure

is considered a contribution to a candidate unless the
expenditure is an activity that is specifically exempted under 17
V.S.A. § 2901(4).

If an exemption applies, the related

expenditures provision does not apply, there is no reporting
requirement, and a publicly-funded candidate will not be deemed
to have violated Section 2983(b)(1).
In their latest filing, Defendants allow that political
parties may provide publicly-financed candidates with robust
support, including get out the vote efforts, messages of support
for candidates, and mobilization of volunteers.

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ECF No. 56-57.

Construing the statute as allowing these sorts of activities is
consistent with the legislative intent behind Section 2901(4),
and protects the right to associate as so aptly highlighted by
the Legislature.

See Vt. Act 90, S.82, Sec. 1, ¶ 10 (“these

exemptions help protect the right to associate in a political
party”).

And given this interpretation of the statute, the Court

finds no constitutional problem with the related expenditures
provision as it applies to publicly-funded candidates.
iv.

Declaration Date

Plaintiffs, and Zuckerman in particular, further challenge
the declaration date for public financing.

In the 2016 election

cycle, candidates may not declare their desire for public
financing prior to February 15, 2016.

After February 15,

candidates may solicit $50 donations in an effort to meet the
minimum of $17,500 during the campaign finance qualification
period.

17 V.S.A. §§ 2981(4), 2984(a)(2).

Formal affidavits to

apply for public financing are due on May 26, 2016.

Id. § 2356.

Defendants submit that the window of time between February
and May is intended to be narrow, so that only viable candidates
who can raise qualifying funds in such a short period of time
will be allowed access to public financing.

As stated in

Buckley, a legislature’s “interest in not funding hopeless
candidates with large sums of public money necessarily justifies
the withholding of public assistance from candidates without

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significant public support.”

424 U.S. at 96.

Such support may

be demonstrated by raising money during the time period, and in
the amounts, dictated by the Legislature.

The Court therefore

finds that this provision is constitutionally sound.
C.

Ruling on the Motion to Dismiss

Accordingly, the Court finds no constitutional infirmity in
Vermont’s public financing scheme.

The Legislature clearly

intended to allow for political parties and other supporters to
be actively involved in publicly-financed campaigns, and drafted
a law that supports the constitutional rights of those various
actors.

The few restrictions in the law are plainly reasonable,

and further First Amendment interests.
In reaching these conclusions, the Court construes the
public financing law such that the legislative exceptions to the
term “contribution” apply throughout the statute.

If the state

courts read the law in a manner that is inconsistent with this
Court’s view, questions about the statute’s constitutionality may
again become ripe.

The motion to dismiss is therefore granted,

and the case is dismissed without prejudice to renewal if
Plaintiffs require further federal court review.
II.

Preliminary Injunction Motion
Because the Court, based upon its own interpretation of the

Vermont statute, finds no constitutional flaw in the challenged
provisions, it correspondingly concludes that Plaintiffs’

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preliminary injunction motion fails to show a likelihood of
success on the merits.

Able, 44 F.3d at 131.

That motion is

therefore denied without prejudice.
III. Conclusion
Plaintiffs contend that Vermont’s campaign finance law, as
enforced by the Attorney General, violates the constitutional
rights of publicly-financed candidates and their supporters.
Testimony before the Court revealed confusion on all sides as to
what the law allows, and whether political parties in particular
can play a role in publicly-financed campaigns.
Having reviewed the parties’ submissions and the relevant
statutory provisions, the Court now finds that Vermont’s public
financing system allows candidates to communicate freely with,
and receive meaningful assistance from, their supporters.
Political parties in particular may provide publicly-financed
candidates with office space, voter lists, training sessions, and
other forms of traditional party support without violating any
statutory restrictions.

The Vermont Legislature specifically

carved out those activities with constitutional principles in
mind, and the Court finds no basis at this time for striking down
the law.
Plaintiffs also submit that they are being outspent by
traditionally-financed opponents.

Because there is no

constitutional right to a level playing field in campaign

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financing, the Court cannot grant relief on that issue.

If the

public grants do not provide enough funds for viable campaigns,
it is for the Legislature and not this Court to make the
necessary adjustments.

As to all other issues raised by the

Plaintiffs, the Court concludes that the challenged provisions
are constitutional.
Accordingly, Plaintiffs’ motion for preliminary injunctive
relief is denied, and the motion to dismiss is granted.

This

case is dismissed without prejudice to re-filing in the event
that the state courts offer an interpretation of the statute that
is inconsistent with this Opinion and Order.

Dated at Burlington, in the District of Vermont, this 9th
day of March, 2016.

/s/ William K. Sessions III
William K. Sessions III
District Court Judge

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