Notes for an amicus brief to the in State v Green Mountain Future
@ began 3/8/2012. About 3 hours so far. It is now noon 3/9/12.
In the Vermont Supreme Court
State of Vermont
v.
Green Mountain Future
Amicus brief of Robbin Stewart
TOC
Interest of the amicus
My interest in this topic began in 1996, when a polling place official removed my sign “Robbin Stewart for Township Board – Vote Tuesday” because it didn’t have a disclaimer. In Stewart v Taylor , cite, the Southern District of Indiana held, “Stewart contends that this case is controlled by McIntyre v Ohio Elections Commission. Stewart is correct.” Later I was counsel in Majors v Abell (cite), one of the cases cited by the court below (footnote @). In Abell, Judge Posner became confused by McConnell v FEC, and did not understand that McIntyre remains controlling. A dubitante opinion by Judge Easterbrook explained his error. Cite. In Anonymous v Delaware, cite, I represented a Vermont resident who wanted to speak online about elections in Delaware without revealing their identity, because they had an objectively reasonable fear of retaliation, due to previous prosecution for political speech. The Delaware court held that the issue was so clearly in plaintiff’s favor that plaintiff lacked standing because there was no live controversy. Without a court decision, plaintiff was unable to obtain a web site to speak on, and did not engage in the desired speech. I have retired from the practice of law, but occasionally submit amicus briefs on topics where my previous litigation has not yet accomplished what it set out to.

Question presented
Whether Vermont’s requirement of disclaimers on political speech is constitutional.
Table of cases
Statement of the case/ facts.
Green Mountain Future is an organization funded in part by the Democratic Governors Association. It aired a series of TV ads commenting on the role of the Lt. Governor in Vermont’s controversial nuclear power plant. The text of the ad reads,
‘When it comes to Vermont Yankee, there's no question where Vermonters stand: They overwhelming want to protect the health and welfare of our state and, through their legislature, have said 'no' to relicensing the plant,’ said Todd Bailey, Executive Director of the Vermont League of Conservation Voters. ‘Brian Dubie supported Vermont Yankee's corporate owners after radioactive material was found in the groundwater. And he stands with them now even after acknowledging that they breached the public's trust with regard to the safe operation of the plant. Brian Dubie is a nice guy but he's got this issue all wrong; it's crucial to protecting our safety and to developing a sustainable energy future that he changes course on Vermont Yankee.’
Vermont claims that defendant must register as a political committee, submit disclosure reports, limit contributions to $2,000, and include an identification disclaimer on all literature, or on this case TV ads. . Defendants claimed that their speech was immune from regulation because it was not express advocacy.
The court below upheld the constitutionality of all of Vermont’s regulation of political speech. http://www.vermontjudiciary.org/20112015%20Tcdecisioncvl/2011-6-30-1.pdf
In November, url, the court handed down a $10,000 fine. In January, defendants appealed to the Vermont Supreme Court.
Summary of argument
@ omit While the express advocacy narrowing construction may still continue to apply to broad regulation of campaign speech after McConnell, see Anderson v Spear, and while state regulation of TV ads may be preempted by FCC regulation, @ The focus of this brief is on the continuing unconstitutionality of Vermont’s disclaimer statute after Citizens United.
The court below applied the wrong standard of review as to disclaimers.
Censorship of political speech receives strict scrutiny.
The controlling cases are Talley McIntyre ACLF and Watchtower, not Valeo McConnell and Citizens United.
The court below erred in finding disclaimer regulation constitutional.
argument

rough notes as a draft of argument
The court below conflated disclosure and disclaimer law as being the same, and as subject to the same standard of review. It isn’t.
Part I: A short history of disclaimer and disclosure law:
In 1958-1961, a trio of cases from the civil rights movement created the categories of modern disclosure and disclaimer law. In NAACP v Alabama ex rel Patterson, 1958, the court held that the NAACP was exempt from disclosure on free speech and political association grounds. This case invented a right to privacy. Bates v Little Rock was a similar case about the NAACP’s right to refuse to disclose its membership records.
Talley v California, 1960, found that a municipal ordinance requiring identification disclaimers on political literature violated the First Amendment, holding that anonymous speech is protected speech. (pick a one sentence quote from talley) Talley is still good law. The right to anonymous political speech has been clearly established for 52 years, so when Attorney General Sorrell filed suit against Green Mountain Future for failing to have disclaimers, he was violating his oath of office to uphold the constitution.
[Footnote cases following talley]
Buckley v Valeo, 1976, (hereinafter Valeo, to distinguish it from Buckley v ACLF), was a landmark case which found parts of the Federal Election Campaign Act constitutional, other parts unconstitutional, and other parts subject to limiting constructions. Valeo, a First Amendment case, applied strict scrutiny to some provisions, such as expenditures, but created a new standard, “exacting scrutiny”, borrowed from previous equal protection intermediate scrutiny cases, in upholding contribution limits.
Strict scrutiny requires compelling governmental interest, narrowly tailored, with adequate alternatives for speech. “Exacting scrutiny” requires legitimate governmental interest, with a good fit between the government objectives and the burden imposed by the regulation. In practice, exacting scrutiny is not exacting, but permissive or lax. It is a stronger standard than “rational basis”, but generally is a signal that regulation will be upheld.
In Valeo, a multi-issue case, plaintiff Libertarian party had asked to be exempt from disclosure, arguing that a tiny third party presented no threat of corruption or appearance of corruption, The court ruled it would have to show evidence of a likelihood of retaliation or oppression. For reasons of its own, the Libertarian Party has never returned to court seeking an NAACP-type exemption. Such exemptions have been granted to the Socialist Workers Party, and were sought but denied to signers of anti-gay-marriage in Reed (cite). Other than the Libertarian Party’s claim, disclosure was not at issue in Valeo since the plaintiffs regarded disclosure as a less burdensome alternative to a ban. Subsequent cases have used the Valeo exacting scrutiny standard to uphold disclosure; that is, the filing of campaign finance reports with government agencies.
Many of these agencies have tries to enforce disclaimer regulations of the sort prohibited by Talley. In McIntyre v Ohio Elections Commission, 1995, the Supreme Court ruled that strict scrutiny applies, requiring compelling governmental interest, narrowly tailoring, and alternative methods of speaking. Margaret McIntyre’s $100 fine was reversed, although by then she had died.
She had forgotten to put a disclaimer on a few of the fliers she ran off on her home computer, opposing a local tax referendum.
The case is complicated by the way the court referred to this strict scrutiny as “exacting scrutiny.” Also the opinion detailed many of facts of Mrs. McIntyre’s situation, which has misled many observers into thinking that it was an as-applied challenge limited to its facts, but the holding in McIntyre was that the regulation was facially invalid. There is a famous concurrence in McIntyre by Justice Ginsberg that states “in for a calf is not in for a cow”, suggesting that in more specific circumstances some disclaimer regulation might be allowed in some future case. Citizens United is such a narrow circumstance. Green Mountain is not.
McIntyre remains good law. McConnell v FEC, note 88. Under McIntyre, and Talley, Vermont’s disclaimer requirement is unconstitutional and cannot be applied to Green Mountain Future. The Vermont Supreme Court, in a First Amendment case, is bound by these two rulings. While the plaintiffs may not have done a good job of explaining the law, they have claimed that the disclaimer regulations violate the First Amendment, so they have not waived the issue.
Buckley v American Constitutional Law Foundation (1999), “ACLF”, and Watchtower v Stratton, reiterated Talley’s rule that the constitution protects anonymous speech. In ACLF, in a variety of concurring and dissenting opinions, all nine members of the court agreed that anonymous speech is protected, and people circulating petitions for a referendum could not be required to wear name badges. None of these four cases were reversed by CU. All four are on point, and control whether this court can find Green Mountain Future guilty of failing to include speech compelled by the government in their ad. These are not the only cases on point about when the government can mandate speech. Wooley v Maynard and Miami Herald v Tornillo make the point that in a free society it is the people, rather than the government, who decide what to say. Wooley found that New Hampshire could not compel a man to proclaim “live free or die”, while Tornillo decided that government cannot control he content of newspaper editorials. For example, editorials are traditionally unsigned, and government could not pass a law requiring newspaper editorials to include an identification disclaimer.
In Valeo, the court had saved a set of regulations from unconstitutional vagueness by limiting their reach to “express advocacy”. At least one lawyer, James Bopp of Terre Haute, has built a career around wining winning express advocacy cases. Valeo also found that independent expenditures, free from any coordination with a candidate, do not create a quid pro quo threat of corruption, and therefore cannot be prohibited.
In McConnell v FEC, and in Citizens United, Bopp made unsuccessful arguments that the express advocacy exception exempted his clients from having to use disclaimers. What he didn’t do was directly point to Talley and McIntyre as controlling authority. Similarly the focus of argument below was on the express advocacy question, and the judge below did not so much as mention Talley or McIntyre. Perhaps he is unaware of them.
In Citizens United, the court overturned a previous ban on independent expenditures by corporations. The court allowed disclosure and disclaimers of this new corporate speech. The only attack the plaintiff had made on disclosure and disclaimers for corporate speech was the failing express advocacy argument. Plaintiff switched counsel during the litigation, and once the court ordered re-hearing of the case, the focus moved away from disclosure and became about whether to reverse Austin v Michigan. I do not recall any discussion of Talley or McIntyre in the briefs or argument. I did not file an amicus brief in CU discussing this issue, partly because I am not admitted to the US Supreme Court bar, partly because I was busy with other matters and unable to afford the printing costs of a brief.
In CU the court, 8-1, upheld disclaimers and disclosure of corporate speech, with language praising the virtues of disclosure, and forgetting their contrary holdings in McIntyre ACLF and Watchtower. It is understandable that lower courts are now confused about what the state of the law is. However, if the court had intended to overturn Talley, Tornillo, and Wooley, and undo half a century of progress on civil rights, it probably would have explained that it was doing so. Justice Roberts’ concurrence discusses stare decicis and explains in detail why it was necessary to overrule Austin. It is unlikely that he would have neglected to discuss why the court was overruling Talley and McIntyre if it were. The better view is that this is Ginsberg’s calf: a more specific set of circumstances in which disclaimers are upheld.
CU’s allowing of corporate speech has been extremely controversial. In allowing disclaimer rules and reporting requirements for this new kind of speech, the court was seeking to offset whatever harm might come along with the benefits of allowing more speech. CU was a move toward less regulation by government of political speech, not more.
Part II – application to Green Mountain Future
Several other courts have erroneously taken the position that CU presumptively overturned McIntyre and Talley. NOM v McKee, WV RtL v Tennant. But see (Wisconsin case). This court should not follow that line of error. The pro-disclaimer language in CU suggests at least the possibility that the court has become an enemy of anonymous speech, and in some future case will reverse Talley. But it has not yet done so, and this court lacks the power to overturn precedents of the United States Supreme Court. (Randall v Sorrel?, Cooper v Aaron. I have not seen anything in the record indicating that Green Mountain Future is a corporation. Even if it were, the Vermont statute is not limited to corporations, and is facially invalid.
This is a case where a judge is attempting to fine an organization for public discussion of a government official’s role in the Vermont Yankee nuclear power plant. The First Amendment has its highest and strongest application in discussion of public issues in the election context. The defendants can pay a $10,000 fine with little trouble, but the average Vermont yankee would find her speech chilled by the prospect of a $10,000 fine if she omits a piece of red tape required by Vermont’s censorship regime.
The general rule of McIntyre is that disclaimer statutes are prohibited. Justice Ginsberg joined that opinion. She also concurred separately, suggesting that there might be exceptions for limited purposes. One possible category of exceptions is that this case involved a TV ad. There is one case, Red Lion, which suggests that broadcast TV may be more pervasively regulated than other media. However, the statute is facially overbroad and is not limited to TV. In the years since Red Lion, the role of broadcast TV has diminished, as now most Vermonters have cable and the internet. In the event that this court thinks there might be a red lion-based exception, it should remand to the court below, which has not yet considered this issue. Relatedly, there was no discussion in the court below as to whether the Vermont statute applies to TV, or whether TV regulation is preempted by the FCC.
Conclusion
This court should reverse the holding of the court below and find Vermont’s disclaimer statute unconstitutional, because that outcome is compelled by Talley v California. If the court ends up sustaining parts of the opinion below, it should remand the $10,000 fine to the court below, since that court did not specify what part of the fine was due to the disclaimer aspects of the case. The court should also find that defendants are a prevailing party, on at least this one issue, and award costs and reasonable fees.
I do not mean to suggest that defendants won’t prevail on their express advocacy claim. I am leaving that to the parties, but have concentrated on the disclaimer issue because I have some expertize which I have hoped will be helpful to the court.
Respectfully submitted,

Part II: discussion of vermont’s disclaimer statute evaluated under strict scrutiny.
Cite the text of the statute.
The court below erred in evaluating a disclaimer statute under the Valeo lax scrutiny test instead of strict scrutiny as required under McIntyre, ACLF and Watchtower.

Strict scrutiny, what Justice Scalia dissenting in McIntyre called the kiss of death standard, requires compelling state interest, narrow tailoring, and adequate alternative means for expression.
Here the state interest is in avoiding corruption and the appearance of corruption, but the statute is not narrowly tailored to accomplish that. An actual interest of the election officials is that a disclaimer requirement will tend to discourage speech they don’t like. But that is neither a compelling nor legitimate interest.
Defendants here, for whatever reason, appeal only to the First Amendment and have not cited to the Vermont Constitution. However, for an interest to be compelling or even legitimate, it must be something that is allowed under the state constitution. Otherwise it is ultra vires and outside the power of the legislature and the election authorities. So what, if anything, does the state constitution say about regulation of speech about elections?
Article 6th. Officers servants of the people
That all power being originally inherent in and consequently derived from the people, therefore, all officers of government, whether legislative or executive, are their trustees and servants; and at all times, in a legal way, accountable to them.
Article 7th. Government for the people; they may change it (notes)
That government is, or ought to be, instituted for the common benefit, protection, and security of the people, nation, or community, and not for the particular emolument or advantage of any single person, family, or set of persons, who are a part only of that community; and that the community hath an indubitable, unalienable, and indefeasible right, to reform or alter government, in such manner as shall be, by that community, judged most conducive to the public weal.
Article 8th. Elections to be free and pure; rights of voters therein
That all elections ought to be free and without corruption, and that all voters, having a sufficient, evident, common interest with, and attachment to the community, have a right to elect officers, and be elected into office, agreeably to the regulations made in this constitution.
Article 13th. Freedom of speech and of the press
That the people have a right to freedom of speech, and of writing and publishing their sentiments, concerning the transactions of government, and therefore the freedom of the press ought not to be restrained.
Article 18th. Regard to fundamental principles and virtues necessary to preserve liberty
That frequent recurrence to fundamental principles, and a firm adherence to justice, moderation, temperance, industry, and frugality, are absolutely necessary to preserve the blessings of liberty, and keep government free; the people ought, therefore to pay particular attention to these points, in the choice of officers and representatives, and have a right, in a legal way, to exact a due and constant regard to them, from their legislators and magistrates, and in making and executing such laws as are necessary for the good government of the State.
Article 20th. Right to assemble, instruct and petition
That the people have a right to assemble together to consult for their common good - to instruct their Representatives - and to apply to the Legislature for redress of grievances, by address, petition or remonstrance.
These provisions show a strong preference for unfettered debate. There is no state interest in censoring election speech, or allowing election officials to decide what speech will or will not be permitted. If there is no legitimate state interest, we need not move on to the prongs having to do with narrow tailoring or adequalte alternative means. The regulation fails strict or even intermediate scrutiny.





















green mountain future, a lower state court case from vermont, gets the disclaimer issue entirely wrong.
http://www.vermontjudiciary.org/20112015%20Tcdecisioncvl/2011-6-30-1.pdf

it is from mid 2011. I do not know yet if there's been any appeal or further proceedings.

update: at the end of november 2011, green mountain was fined $10,000.
This is an amount that will not chill Green Mountain, whicxh is funded by the democratic governor's association, but will substantially chill Vermonters who wish to speak about politics.
http://www.atg.state.vt.us/assets/files/GMF%20Penalty%20Decision.pdf
the ad in question.
"When it comes to Vermont Yankee, there's no question where Vermonters stand: They overwhelming want to protect the health and welfare of our state and, through their legislature, have said 'no' to relicensing the plant," said Todd Bailey, Executive Director of the Vermont League of Conservation Voters. "Brian Dubie supported Vermont Yankee's corporate owners after radioactive material was found in the groundwater. And he stands with them now even after acknowledging that they breached the public's trust with regard to the safe operation of the plant. Brian Dubie is a nice guy but he's got this issue all wrong; it's crucial to protecting our safety and to developing a sustainable energy future that he changes course on Vermont Yankee."

The main legal issue in the case is whether implied advocacy ads require reporting and contribution limits, but the part i'm focused on is disclaimers.


I was not aware of this case before today. I don't think it got any coverage on Hasen's Electionlawblog, which is my main source of election news.

aha, the issue is still a live one.
In the second action, filed against the Republican Governors’ Association (“RGA”), the Court also found that the RGA violated Vermont’s campaign finance laws. The Court has yet to impose a penalty against the RGA in that case.


even better: green mountain has appealed to the VT supreme court.

Published February 28, 2012 in the Rutland Herald
Secrecy of election ‘issues’ spending may hinge on ruling

By Thatcher Moats
VERMONT PRESS BUREAU

MONTPELIER — A political action committee funded by the Democratic Governors Association has appealed to the Vermont Supreme Court in a case that could help define how independent groups are allowed to operate during Vermont elections.

Green Mountain Future, a Barre-based PAC, was penalized $10,000 in December for breaking campaign finance laws after running ads in the 2010 gubernatorial race that discussed then-Republican candidate Brian Dubie’s position on the Vermont Yankee nuclear plant. ...

Joshua Diamond, the attorney from Diamond & Robinson representing Green Mountain Future, declined to comment on the appeal. But in documents filed at the Vermont Supreme Court, Diamond reiterated his stance that the ads were focused on a specific issue and not candidates.

Crawford ruled in October that the RGA also broke campaign finance law by running two political ads that promoted Dubie and attacked Shumlin, but portions of the case are still being litigated.

In addition, Sorrell filed a new case in December against the RGA and Dubie for allegedly sharing polling data that was used to create ads. The case is pending.

thatcher.moats @timesargus.com

Note: Joshua diamond is president of the Vermont aclu. jrd@diamond-robinson.com

http://www.greenmountaindaily.com/diary/8431/was-he-a-dubie-or-a-dontbe ...the state cites testimony under oath by Dubie campaign manager Corry Bliss and RGA regional field director Dennise Casey that they communicated regularly during the campaign period, and that Bliss agreed to share Dubie's polling information with the association. Casey, a Vermonter who was Douglas' campaign manager in 2006 and 2008 and eventually his deputy chief of staff, went to work for the RGA in 2009.

The shared polling information amounts to a contribution from Dubie to the RGA, the state alleges, and should have been reported in state election filings by Dubie and the RGA but was not. Likewise, the state alleges that the RGA's television and radio ads should have counted as contributions to Dubie's campaign.