Vermont Campaign Finance Law Is Before the U.S. Supreme Court Again

Posted by James Madison CenterSep 30, 20140 Comments

Vermont's campaign-finance law, that requires a lobby group to be a PAC if it engages in over $1,000 in issue advocacy and that imposed contribution limits on Vermont “superpacs,” was appealed Monday to the U.S. Supreme Court. The challenge is brought by Vermont Right to Life Committee, Inc. (“VRLC”), and Vermont Right to Life Committee – Fund for Independent Political Expenditures (“VRLC-FIPE”).

VRLC, a 501(c)(4) lobby and issue advocacy group, seeks to engage in advocacy about issues via newsletters, brochures, pamphlets, petitions, press releases, direct mail/mass mailings, mass e-mail, newspaper columns, and its website.

However, if VRLC engages in any of its issue speech, VRLC itself must be a political committee under Vermont law, even though it is not under the control of a candidate and does not have the major purpose of nominating or electing candidates. Being a political committee means that VRLC must comply with onerous organizational and administrative burdens, including complying with strict contribution limits. VRLC would be severely adversely effected if it had to become a PAC, so it has not engaged in the political advocacy that the Supreme Court upheld in Citizens United.

In addition, VRLC, if it engages in its speech, must comply with one-time, event-driven reports for what Vermont calls “mass-media-activities,” and must comply with burdensome attribution requirements for what Vermont calls “electioneering communications.”

These laws reach beyond speech expressly advocating the election or defeat of a clearly identified candidate and beyond federal-type electioneering communications, which the Supreme Court has held government may regulate with one-time, event-driven reports and with attribution requirements.

To be a federal-type electioneering communication, speech must have a clearly identified candidate, be broadcast in the 30 days before a primary or 60 days before a general election, and be targeted to the relevant electorate.

Meanwhile, VRLC-FIPE, a Vermont independent-expenditure-only political committee, objects to the $100 threshold, at which political committees must reports contributions they receive, as being too low. 

In addition, VRLC-FIPE wants to receive contributions beyond Vermont's PAC contribution limit. However, Vermont successfully argued that VRLC-FIPE is a hybrid PAC that could suffer contribution limits.

The New York City-based Second Circuit Court of Appeals upheld the challenged laws. 

First, the court of appeals held that the PAC requirement is only applicable to federal law, not state law, and is just a “disclosure” requirement. This splits with circuits holding that the major-purpose test applies to state laws triggering political-committee burdens.

Second, the court of appeals summarily rejected the challenge to the contribution-reporting-threshold. This splits with other circuits that have struck down low reporting thresholds. 

Third, the court of appeals rejected VRLC-FIPE's PAC contribution-limit challenge, because it erroneously found VRLC-FIPE is part of one organization with Vermont Right to Life Committee – Political Committee (“VRLC-PC”), which makes contributions to candidates. This splits with other circuits in multiple ways.

For example, holding VRLC-FIPE is part of VRLC-PC splits with other circuits holding that such organizations are independent of one another as a matter of law.

Even if VRLC-FIPE were a hybrid PAC because it is one organization with VRLC-PC, the Second Circuit did not recognize that VRLC-FIPE still has a First Amendment right to receive unlimited contributions for independent expenditures, since “the record does not show that funds from VRLC-FIPE were used for candidate contributions.”

“Vermont has tried for years specifically to limit issue advocacy speech and generally to severely limit political participation by citizens in its election,” said James Bopp, Jr., counsel of record for VRLC and VRLC-FIPE. “Their attempt to impose low contribution limits and mandatory expenditure limits on candidates has already been rejected by the U.S. Supreme Court and these limits are bound to fail as well” Mr. Bopp continued.

VRLC and VRLC-FIPE on Sept. 29 filed a certiorari petition asking the Supreme Court to take up this challenge. The petition is at

James Bopp, Jr. has a national constitutional law practice with The Bopp Law Firm, .