Bill Sorrell has sued Dean Corren and settled a complaint against the Vermont Democratic Party for allegedly violating the private contribution prohibition of our public campaign finance system.
In case you've missed it, the state is suing Dean Corren personally for coordinating an e-mail blast with the Vermont Dems to the Dems' e-mail list in support of Corren's unsuccessful Lite Gov campaign last year. He's asking the court to fine Corren $72,000.00: $10,000 statutory damages for each of two counts of violating Vermont's campaign finance laws, plus forfeiture of $52,000, the amount Corren had unspent in campaign funds at the time of the alleged violation. Oh yeah, the value of the e-mail was estimated at about $255.00.
Now comes John Franco on behalf of Dean Corren, suing the Attorney General in federal court to block enforcement of the law and the whopper of a penalty Sorrell wants to exact.
I heard about this and I did what any lawyer would do: I read the complaint and I read the law. $72,000 sounded like a lot of money, but from the language of the statute it appears that the $52,000 forfeiture, or “refund” is mandatory, so Dean's probably going to have to cough it up.
It turns out it's not that clear. Corren's complaint and preliminary injunction memorandum raise some very good questions, and I'm going to be interested in seeing how Sorrell answers them.
First, apparently it's not at all clear that this was even a violation. According to Corren, when the Legislature amended the law in 2014 it explicitly excluded this kind of help from being counted as a contribution. The Legislature made findings as part of the law, Act 90, that:
(10) Exempting certain activities of political parties from the definition of what constitutes a contribution is important so as to not overly burden collective political activity. These activities, such as using the assistance of volunteers, preparing party candidate listings, and hosting certain campaign events, are part of a party’s traditional role in assisting candidates to run for office. Moreover, these exemptions help protect the right to associate in a political party.
And the Legislature also expressly excluded this specific activity:
As used in this chapter, “contribution” shall not include any of the following:
(F) the use of a political party’s offices, telephones, computers, and
similar equipment;
Is this a winning argument? I don't know, but at a minimum it is arguable.
Second, Corren and Franco argue that the $52,000 forfeiture is unreasonable, and not narrowly tailored to achieve the legislative purpose. They point to other provisions in federal or state laws that call for a penalty far less than all the money on hand at the time of the violation, such as forcing the offending candidate to refund the amount of the improper contribution, to pay that amount to the state, or pay three times the amount of the illegal contribution. Vermont's law doesn't say this, but they are entitled to argue that the only way to make the law constitutional is to make the punishment fit the crime in a way that the words of the statute don't.
I'm not persuaded by all of the arguments that Corren and Franco make. For instance, they seem to argue that requiring a publicly funded candidate to forgo private contributions in order to get public money violates the unconstitutional conditions doctrine. I'm not sure how well this argument will go over. Judges like to see a limiting principle to the arguments the parties make, but I don't see the limiting principle here. Can they really be arguing that this law, specifically intended to avoid the corrupting influence of private money by providing public financing is only constitutional if the publicly financed candidate remains free to accept private contributions? This seems nonsensical on its face, but maybe there is a more subtle point that I'm not perceiving here.
I don't attribute any improper motives to the case Sorrell has filed against Corren. A prosecutor is an especially difficult position when presented with a complaint against his own party; the possibility or appearance of impropriety would be too great. Nevertheless, I think the federal complaint raises serious questions that may seriously undermine Sorrell's legal claims. It will be interesting to see how it plays out.
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When I read about it, I thought it sounded like each side of the argument had it a little bit wrong.
At the very least this sounds like an effective test of the rules which might need some serious tweaking in order to genuinely adhere to the intent of the law.
I tend to side with Corren, not because he is a Prog, but because he is the first candidate in Vermont to opt for public funding and it would be troubling if this ruling extinguishes either the initiative for two parties to form a temporary coalition or for any candidate to accept public funding over
the status quo. It seems to me that this would effectively kill the viability of public funding and reinforce the two-party system preference.
That would be great for Shumlin and Sorrell, neither or whom are overly popular on the left and therefore always vulnerable to cross party primaries.
I’m a little curious about what this would mean if the candidate who chose to accept public funding belonged to either of the two major parties. Is it simply assumed that the only folks who will opt for public funding will be third party candidates or independents? What if a plain old Democrat wanted to choose public funding over private funding, as a matter of principle (which is kind of the point of the whole thing)?
Would that Democrat necessarily be entirely barred from the get out the vote effort? Even punch and cookies and a stump at party rallies could be construed as having a dollar value if viewed with a will to do so.
Would it be necessary for that publicly funded candidate to distance themselves from other Democratic candidates who might throw an arm around their shoulders before the local news camera and say nice things about them? That too must have a “dollar value.”
Since Corren ran in and won a Democratic primary, doesn’t that make him nominally a Democratic for that one election cycle?