By Dean Corren
Vermont is one of a few states with a campaign finance law that provides for public financing (PF). Lieutenant Governor candidates who qualify by collecting at least $17,500 from 750 Vermont voters in small (up to $50) contributions in a limited amount of time, may qualify for state funding to a total of $200,000. Under the law, the candidate is not allowed to accept any further contributions of any kind.
In June, 2014, Dean Corren, a former Progressive legislator and Outreach Director for Bernie Sanders, was the first candidate to qualify for PF in ten years. Corren also won both the Progressive and Democratic primary nominations and party endorsements to run against the incumbent Republican.
During the campaign, Corren proposed extending PF to all Vermont elections, to free candidates from the undue influence of big money interests. Throughout the campaign, Corren’s campaign made it clear to all whose support was sought (volunteering and voting) that no monetary or in-kind contributions would be accepted. The best example was the Ben & Jerry’s ice cream served at the statehouse kickoff hosted by Ben and Jerry. Rather than the usual free contribution, the Corren campaign purchased that ice cream.
The campaign involved many press conferences, meetings, rallies, endorsements, advertisements, posters, and commercials on radio and TV, and communications of all kinds.
On October 24, eleven days before the November election, the Chair of the Vermont Democratic Party (VDP), Dottie Deans, sent out an email to Vermont Democrats in support of Dean Corren and the rest of the Democratic ticket, including Governor Peter Shumlin and Congressman Peter Welch, and inviting them to attend rallies with U.S. Senator Bernie Sanders. This was done after discussions with the Corren campaign in which it was made clear that no contribution could be accepted, and thus any such support effort could only be done if it was legally exempt from being a contribution, or was paid for. Both campaigns had lawyers looking into how to meet the legal requirements.
Eventually, an email was sent out by the VDP without the approval or acceptance by the Corren campaign. Apparently, the VDP attorney had approved it as being legally excluded from being considered a contribution. The Corren campaign still asked the VDP if there was any value to the email, for example, based on the value invoiced to other campaigns. The VDP would not state any value.
On October 30, 2014, four days before the election, and well before any payment would have been due, the VT Attorney General’s (AG) office sent a letter to the Corren campaign enquiring about the VDP Chair’s email, requesting information including emails, which the campaign provided. These emails show clearly in fact, that the campaign was determined to comply with the law. Through its attorney, the campaign reiterated to the AG that, under the law, the email was specifically excluded from being a contribution, but that if they were to deem it to be a contribution with value, the campaign would pay that value.
This would have been a major step, since it would, apparently for the first time, make all such emails suddenly campaign contributions, placing many prior and virtually all current campaigns in violation.
Since by law, the PF campaign had to terminate in mid-December while the Secretary of State and AG were still considering this issue, the campaign offered to put money in escrow with the SoS. (The campaign could not send an arbitrary amount of money to the VDP, since any extra funds could be an illegal contribution from the PF campaign to the VDP.) With the escrow option, the SoS could forward the appropriate amount to the VDP once they decided what that was, and return the remainder to the state as required by law. After a delay, the AG would not allow any value to be paid via the escrow option.
In the November 4, 2014 election, Corren lost the Lt. Gov. race to the incumbent. After some other communications and further requests for information, the campaign expected the AG to drop the matter. No proper investigation was ever conducted, and no one was interviewed by the AG.
In February, 2015, the AG held a meeting with Corren and campaign attorney Dan Richardson, describing a draft complaint he was preparing to file if Corren did not pay a fine of $72,000. The AG claimed for the first time that the VDP email had a value, which he said was $255, and it constituted an in-kind contribution. That led to two $10,000 penalties, one for accepting the contribution and one for not reporting the contribution, and a requirement to refund $52,000 – the amount of campaign funds unspent on October 24, 2014 when the VDP email was sent.
The AG also threatened to redefine other forms of support as contributions if the proposed penalty was not paid. This appears to be the greatest campaign finance law penalty ever sought, even while it was for the smallest purported violation ever prosecuted.
Subsequently, the AG went further, to assert that by using PF, Corren had no right to discuss support of any kind from the Democratic party. Such a blanket prohibition is not in the law, and is not in line with the legislature’s clearly-stated intention. The PF law was intended to help non-big-money candidates be competitive with those supported by big money. It was not intended to apply only to independents, nor to eliminate the role of parties, and nor to ensure that a PF candidate must lose by appearing to be a pariah within his/her own party. Such a prohibition on party association is also clearly unconstitutional.
Since the Corren campaign was thoroughly scrupulous in not accepting any contributions of any kind, and since the VDP chair’s email was specifically exempted by law, and since the Corren campaign made every possible attempt to pay for any value, and was in fact thwarted by the AG, and since several Constitutional issues are raised by the AG’s actions, the only possible course was to file a civil rights action in federal court to enjoin the AG from further threats of such enforcement. Corren filed in federal district court on March 20, 2015. The AG quickly filed his charges in state court, attacking Corren in a highly inflammatory and misleading press conference.
As it currently stands, PF in Vermont no longer exists as a practical matter. No one could be reasonably expected to seek to qualify for PF when, after the fact, they could be forced to pay a devastating amount from their personal funds – as much or more than the VT median annual family income. No one will take that risk.
The only way to restore and perfect Vermont’s PF law is to prevail not only on the specific facts and law in this case, but on the broader Constitutional issues so as to ensure that this kind of extreme, selective, and arbitrary prosecutorial behavior cannot befall future PF candidates. Those Constitutional issues include freedom of speech, freedom to associate, freedom from unreasonable penalties, and equal treatment under the law. Results of this legal effort, and subsequent clarifying legislation must include that the PF candidate must be allowed to be:
- wholly competitive with privately-financed candidates,
- free to receive support from his or her party, just as any other candidate,
- subject to restrictions that are Constitutional, clear, and uniformly-applied, and
- subject to reasonable Constitutional penalties.
During the remainder of 2015, the legislature eliminated one of the penalty provisions the AG was attempting to use, the state court action was stayed pending an abstention decision by the federal court, several plaintiffs joined the federal suit, and the AG became the subject of an independent investigation for accusations of serious campaign and official conduct violations. These were subsequently dropped for insufficient evidence.
In December, 2015, federal District Court Judge William Sessions issued an order allowing the federal case to proceed with all plaintiffs (over the procedural objections of the AG), but at the same time, the state suit was also allowed to proceed. So now we have two simultaneous lawsuits, one as plaintiff (successfully joined by the Progressive Party, Senator David Zuckerman, and others), and one as defendant.
In March, 2016, the federal court ruled, in agreement with Corren, that in order to be constitutional, the state law, including the clear exclusion of the email as a contribution, must be applied equally to publicly-financed candidates. The ruling allowed us to return to federal court on the constitutional issues if the state acted otherwise.
We are represented by Burlington attorney John Franco, who has won prior Vermont election law cases, and who has left no stone unturned in the cause of restoring viable public campaign financing in Vermont. Only if we prevail can we restore Public Finance as a viable option for candidates who don’t wish to be beholden to Big Money, but can’t risk personal bankruptcy from such malicious and unaccountable prosecution. We must also seek support in funding the legal defense of myself and Public Finance as a whole.
Update, August, 2016:
After the March 2016 federal order, the AG filed a response taking the position that any advocacy by a political party for a publicly financed candidate is banned. This shocking new position against a party’s free speech goes far beyond his misapplication of the law that the federal court already discredited.
So, as provided for by the judge, we have returned to federal court to stop this attack on all Public Finance and the First Amendment associational rights of both candidates and parties.
Further, the AG has now engaged in a huge, irrelevant (and costly!) fishing expedition into all of Corren’s communications with Bernie Sanders and the Progressive Party. By claiming that he needs to learn more information (he’s already had over 1-1/2 years, and complete investigatory powers) he’s admitted that he never had a case in the first place. In state court we are strenuously resisting this blatant tactic by the AG to drive up our costs. We have provided more than sufficient evidence that the case should be dismissed.
Neither court has taken any action in four months.