In a complex ruling that explores the contours of the First Amendment rights of activist organizations, the Court of Appeals rejects a challenge to various electioneering laws by a Vermont right-to-life organization. This case is probably on its way to the Supreme Court.
The case is Vermont Right-to-Life v. Sorrell decided on July 2. This is a long decision (84 pages), so let's go through the challenges one by one.
First, Vermont law says that electioneering communications -- defined as those that advocate for or against a candidate in the form of TV or billboard (and other) advertising -- must identify the name and address of the person or organization who paid for the advertising. This rule -- governing communications that "promote," "support," "attack" or "oppose" -- is not unconstitutionally vague. Nor is it vague to regulate communication "on behalf of" a political committee or political party. The word "expenditure" is also not vague. The same holdings apply to the Vermont requirement that a person engaging in certain mass media activity must report to the government who paid for that activity and the name of any candidates featured in that activity.
More broadly, these rules satisfy constitutional standards. Of course, no political organization wants to report this information to the government. But, the Second Circuit (Wesley, Droney and Briccetti [D.J.]) says, they serve the public interest. One provision says the campaign has to notify the government some particulars about the advertisements. "By alerting candidates whose image or name is used, the reporting requirement will identify the source of election-related information and encourage candidate response. And by requiring that the speaker notify the candidate whose image or name was used, the provision brings so-called 'whisper campaigns' into the sunlight and also helps ensure that candidates are aware of and have an opportunity to take a position on the arguments being made in their name."
Also under Vermont law, certain political action committees must make all expenditures from a single checking account, file reports with the government identifying financial contributors and cannot accept more than $2,000 from a single source in a two-year election cycle. The definition of "political committee" is not vague. More broadly, this provision does not squelch free speech. PAC's need only disclose transactions that support or oppose a candidate. "The disclosure regime is substantially related to the recognized government interest in providing the electorate with information about the sources of election-related spending."
The $2,000 PAC contribution limits are also legal. Unlike expenditure limits -- which are legal only if they prevent the actuality or appearance of quid pro quo corruption -- contribution limits are more easily regulated because they only indirectly constrain speech and associational rights.The right-to-life people argue that the law is structured in a way that harms them under the First Amendment, that there cannot be a quid pro quo the RTL Fund for Independent Expenditures is enmeshed financially and organizationally with a related RTL organization that makes direct contributions to candidates.
No doubt all of this is confusing. Campaign finance law is complex because the Supreme Court has distinguished between expenditures and contributions, and because the First Amendment itself is complicated in this area. Now that the Supreme Court is striking down campaign finance laws left and right, this case is certainly ripe for Supreme Court review.