Talk about an explosion of activity in the nuts and bolts world of elections, as Vermont Attorney General Bill Sorrell’s office has sued both the Republican Governors Association and the “Green Mountain Future” organization, for which the Democratic Governors Association is a funder. Both are running political ads in the state.
The charges against GMF I have little information on at this point, although it looks to be akin to the first issue the AG has with the RGA (more on that below).
The RGA, however, has countersued the Attorney General, and that’s because the charges against them, as well as the investigation, are (for the moment) at a different level.
The letters from the AG’s office to the RGA have two themes. The first is, frankly, a bit embarrassing. Much as I’d like to say it has value, it reads like yet another case where the Attorney General’s office doesn’t seem to understand the law it’s supposed to be enforcing, in some very fundamental ways. The AG has concluded that the RGA is essentailly in violation of its nonprofit status and should be filing as a Vermont Political Action Committee. Sadly, they don’t need to, as the AG’s office is clearly screwy on this one. It’s true that if an organization expressly advocates for a candidate, the jurisdiction of that election (in this case, Vermont) can regulate its behavior – thing is, the RGA hasn’t done that. Their ads are all about how cool Brian Dubie is, but they stop short of telling viewers to vote for him. The AG office’s letter of October 19th alleging a violation, therefore, ignores established Supreme Court precedent, whether we like it or not – and the issues the office has with Green Mountain Future are in a similar vein. The AG’s office is going way out here in trying to claim regulatory authority.
Unfortunately, this silliness is allowing the RGA to use it to cloud the second issue, which is more damning and potentially has implications for Vermont, in that the countersuit amounts to an unprecedented power play over a State government by the arm of a national political party.
More after the flip, along with a pdf of the RGA’s suit, filed by former GOP Secretary of State candidate Chris Roy
The AG’s second letter from October 22nd gets into the meaty stuff. In that, Assistant Attorney General McShane makes broad demands for all communications between the RGA’s “Green Mountain Prosperity” PAC, the RGA and the Dubie campaign. They want information on the sharing of poll data, including copies of any communication the RGA plans to run between now and the election. Pretty sweeping stuff that’s clearly an information dragnet supporting a more serious investigation.
Here’s what’s really extraordinary, though. The RGA (through attorney Roy – man, good thing he ain’t gonna be Secretary of State, eh? Geez!) wants an injunction to prevent the AG from proceeding with any civil or criminal investigation of them. They claim he’s incapable of fairly investigating, because he is an elected Democrat, which is a spit in the eye of Vermont’s fundamental governmental structure. The RGA would have Vermont throw that structure out the door, at their demand, and allow the Governor (who I believe also is a partisan elected official, if I’m not mistaken) to appoint some sort of independent counsel a la Ken Starr.
They got nerve, at any rate. And unfortunately they muddy this more serious issue by calling out the AG’s office for their blown call on the former point.
But here’s the thing – the RGA says they want a judgment on their request within 60 days, even though the election is only a week away. WTF?
Well, they could be flailing. They could also be filing the suit just to discredit the action of the AG in the press, except that they really did no press on this suit, so they weren’t exactly trying to trumpet it. More likely it’s just a delaying action, either by good old fashioned legal red tape, or by virtue of the explosive threat to the Attorney General’s authority and Vermont’s constitutional autonomy. The AG has indicated its intention to deal with issues like this before the election, and it looks to me like the RGA knows it’s in big trouble and it wants the whole issue put off until it won’t do Dubie any damage.
And it needs to be said that Vermont isn’t the only state where they’re engaging in these shenanigans. In a previous diary, I referenced their checkered history of ignoring campaign finance laws, but it’s not just history. Right now in Hawaii, this is the story:
Democratic Party Chairman Dante Carpenter and lawyer Tony Gill claimed the Aiona campaign shared polling and other information with the RGA, which was then used to produce its “rise and shine” television ads that appeared between Aug. 5 and Sept. 24. Similar RGA-financed ads recently began airing.
Under state statutes, the RGA’s efforts on behalf of a Hawaii candidate are to be independent of that candidate’s campaign, the Democratic Party officials said.
They alleged that the RGA violated the law by acting “in concert or cooperation” with Aiona’s campaign committee.
[…] An exhibit accompanying the Democratic Party’s complaint showed that the RGA accepted a contribution from Aiona’s campaign for $31,039 on June 21, the same day that the RGA donated research worth the same amount to Aiona’s campaign, according to the RGA’s contribution and expenditure report filed with the Internal Revenue Service.
Familiar, isn’t it? It’s exactly what they’re doing in Vermont. Seems to me the term for such an large scale engagement in illegal activities is racketeering, but I digress…
Consider the implications of the RGA engaging in activity they know to be illegal and attempting to strong-arm the Attorney General and force a whole new way of handling legal matters in the state. If Brian Dubie is elected, it will be under that cloud.
And if he gets a plurality of the voter but is below 50%, that illegality is damn well good reason for the legislature to question the validity of that plurality. Talk about ill-gotten gains.
So that’s a snapshot, but only an initial one. There is a lot of information in the RGA’s filing, attached below – including what looks to be some information about what they may have in the pipeline. I encourage folks to take a closer look and post on what they find. May be nuthin’, may be lots…
(and assuming it correctly restates the law) it sounds like they have cited the exact provision under which the RGA ad fails to satisfy the letter of the law, which apparently says that such activity
If not “expressly” advocating for Dubie’s election, there should be no question but that this was the purpose of the ads, making them a “functional equivalent of such advocacy.”
is contained in the First Amendment. I’m no lawyer and certainly no constitutional scholar. I’m just reading the words they have quoted in the document. If the language actually is in the First Amendment, one would think it would have some meaning. What then would be an example of a “functional equivalent of such advocacy” that would pass muster under current precedent?
But when those docs get embedded it kills my scroll wheel. I have to reach for the slider on the window, regardless of where I click on the page.