In a legal hangover from the November elections, a Burlington superior court judge has dismissed former Republican candidate Jack McMullen’s request that the court rule on illegal coordination between Attorney General Bill Sorrell and a Washington, D.C., super PAC, or at least investigate the matter.
In a decision issued Monday, Judge Robert Mello wrote: “McMullen has produced no evidence showing that the Sorrell campaign consented to Dean acting on its behalf or that the Sorrell campaign had any control over Dean’s actions in connection with the television advertisement produced by CJF [the Committee for Justice and Fairness].”
The decision continues: “The evidence presented shows that Dean and Sorrell are friends and that Dean endorsed Sorrell in various media during the 2012 Democratic primary race. However, it does not follow that Dean was an agent of Sorrell’s campaign.”
The crux of McMullen’s contention in court had been that former Vermont Gov. Howard Dean acted as an “agent” for Sorrell in the 2012 Democratic primary, and became an intermediary between the supposedly independent super PAC the Committee for Justice and Fairness and the Sorrell campaign.
The first and only court hearing on the matter took place last Wednesday, with the decision issued on the Monday following. It had been the first court hearing ever held under VSA 2809, an arcane and previously unused campaign finance statute which McMullen exploited about a week before the day of the election.
McMullen called the court’s decision “well reasoned,” but added: “The only way we could have cleared the objections raised in the decision would have been to depose Howard Dean … but the statute doesn’t seem to contemplate full-blown litigation tools in the heat of the campaign, used by a candidate.”
He also argued that the ruling gave a “green light” to super PACs and their unrestrained spending by setting a very high standard for proving illegal coordination between a candidate and a super PAC.
“Basically, it says that unless you catch these guys directly coordinating, or depose someone who’s active as an agent, then you’re not going to have coordination,” said McMullen.
While McMullen holds that if the court had heard direct evidence through deposition, instead of “hearsay” testimony through the newspaper clips he presented, the decision may well have turned out differently, the decision itself paints a different story.
The decision says that if confidential information had been shared between Dean and Sorrell, that fact may have helped to prove coordination, but that no such sharing of information happened.
McMullen doesn’t plan to further pursue his allegation that Sorrell illegally coordinated with the committee, in turn backed by the Democratic Association of Attorneys General, which spent about $194,000 backing Sorrell’s re-election in August 2012.
Meanwhile, Addison County State’s Attorney David Fenster hasn’t yet decided whether to investigate Sorrell on the same charge, more than three months after a request by Republican Party chair Jack Lindley, which came at the height of campaign season.
“This is not something that state’s attorneys normally deal with, so there is no ordinary time frame,” said Fenster. “We’re still reviewing it.”
Fenster wouldn’t say when he’d decide whether or not to take up an investigation, and wouldn’t discuss the factors under consideration here, saying this lack of further detail was standard policy for investigative requests.
Sorrell welcomed his minor court victory in this matter, calling McMullen’s legal petition “frivolous.”
“I have absolutely no problem whatsoever if David Fenster wants to investigate,” added Sorrell. “I’ll tell him what I’ve said publicly any number of times. It just didn’t happen, there just weren’t any violation of campaign finance laws on my part … I have absolutely nothing to hide.”
