Republican attorney general candidate Jack McMullen filed a petition in Chittenden County superior court on Wednesday afternoon, compelling a judge to schedule a hearing within 24 hours to make an initial determination about whether Bill Sorrell coordinated with a super PAC in August.
McMullen activated an arcane, and as yet untested, campaign finance provision, which allows candidates, and candidates only, to request a court’s factual determination about whether certain expenditures count as co-ordinated with a political campaign.
The statute says the petition takes precedence over all other cases, and will receive a hearing at the earliest practicable date, and be “expedited in every way.” McMullen isn’t sure whether the actual hearing will be held within 24 hours, or whether the court must simply set a date within 24 hours.
McMullen plans a Montpelier press conference Thursday to discuss further details, but said on Wednesday that the petition alleges that Howard Dean’s role, appearing in super PAC ads for Sorrell, and at the attorney general’s campaign events, makes him an agent of the Sorrell campaign.
Under Sorrell’s own guidelines, argues McMullen, this raises troubling questions about co-ordination. He also argues it’s irrelevant whether Sorrell knew about Dean’s work with the super PAC in question, the Committee for Justice and Fairness.
“This is an independent remedy,” said McMullen, who said Vermont GOP chair Jack Lindley hadn’t encouraged him to file the petition. “I determined to file it after seeing how quickly the AG acted on a complaint from the Democratic Party, about Vermonters First.”
McMullen wasn’t sure if he’d take further legal action even if the court determines that improper co-ordination occurred, saying that Lindley’s pending request with a state’s attorney is enough for now. He seemed in the dark about what could happen at a potential hearing, observing: “Nobody’s tried to do it before under the statute.”
McMullen’s petition pitch? “When an election is coming up very quickly, this allow voters, if nobody else, to determine whether the law was broken. If there’s been a determination of a related expenditure, then the AG has broken the law. He’s also ignored requests for something to happen about it. That’s relevant information for voters to know.”
Sorrell has consistently maintained that he hadn’t done anything illegal during the August primary, and reiterated that today. “I’ve said I’m not guilty, that I didn’t do anything wrong. Less than a week before the election, McMullen’s negative politics are not resonating with Vermont voters.”
“This is an act of desperation. He has a right to try to do it, but ought to have some evidence to support something like this,” said Sorrell. “I hope this isn’t an indication of the kind of AG he’ll be, filing emergency motions in court when he doesn’t have any evidence to back up what he wants the court to do.”
Brian Dunkiel, a lawyer experienced in campaign finance and elections law, couldn’t recall a previous petition brought under the provision, designed to allow candidates a speedy legal forum for complaints during an election.
Dunkiel was unsure if the court had to declare facts within a specific timeframe, noting: “While this provision provides Mr. McMullen an opportunity to be heard in hearing by a court, quickly, it does not provide any guidance to the court, on what it should do with the information it hears, other than make findings.”
The court’s findings, if there are any, could count as evidence in a later case alleging a violation of campaign finance laws. The enforcement of this particular statute, said Dunkiel, is usually the responsibility of the attorney general’s office.
Dunkiel also underlined the fact that only candidates, and not other interested parties, like political parties or political action committees, are empowered to initiate this petition.
VPIRG executive director Paul Burns, whose advocacy group has dealt extensively with campaign finance, said that the provision was included in comprehensive campaign finance legislation passed in 1997.
His view is that provisions in elections law, which compel immediate consideration, aren’t all that unusual, in recognition of the fact that there may be a short window for the filing of a complaint and Election Day.
But Burns also acknowledged that the provision could be abused. Speaking generally, he said: “Could there be a dirty tricks element to this? You’re given immediate credibility, by receiving a hearing by a judge, likely to draw media attention. That alone may be enough to tar the reputation of an opponent, when the follow-up on whatever the judge decides may get less attention by the media or voters.”
“There’s perhaps some potential for abuse here,” he continued. “But you’ve got to weigh that against the need to find quick resolution to a problem.”
Secretary of State elections chief Kathy Scheele also believed McMullen’s late-game move under the statute was unprecedented.
Secretary of State Jim Condos couldn’t speak to the original intent of the statute, but suspected that it hadn’t been used before because candidates often pre-emptively approach his agency for advice on complying with technical campaign finance laws, before making potentially illegal expenditures.
Condos said he’d never been contacted by Sorrell or his campaign to discuss any political spending, though he noted Sorrell and his government staff have enough legal expertise to understand the details.
Condos acknowledged that naturally, more questions were raised about the fine lines between co-ordinated expenditures, which are forbidden, and independent expenditures, in an election season which has seen super PAC activity in Vermont for the first time.
Howard Dean, Sorrell’s supposed “agent” according to the petition, seemed entirely unfazed about a potential court hearing. Asked about McMullen’s actions after a Statehouse press conference, Dean replied: “So what’s his evidence? Anybody can say anything. He’s just making stuff up and throwing it against the wall. That’s silly.”
“I’m sure it’s a lawyer’s trick, but Jack’s not even a member of the bar in Vermont. So I don’t worry about it too much.”