BURLINGTON — A federal judge has upheld the constitutionality of Vermont’s law on publicly financed campaigns but said the court would entertain a similar challenge if the state uses the law to restrict candidates’ communication or association with their party or supporters.
The decision has direct implications for the 2016 election, because Sen. David Zuckerman, P/D-Chittenden, had joined the suit, arguing, among other things, that the current ban on campaigning by publicly financed candidates before Feb. 15 of an election year places them at an unfair disadvantage.
Zuckerman, who began campaigning for lieutenant governor well before February, said he was prepared for this outcome but would have preferred public financing.
The senator announced this month that he’d met the small donation threshold to qualify for public grants, having raised $18,672 from 753 registered voters. His opponents in the Democratic primary, Burlington Rep. Kesha Ram and Marlboro businessman Brandon Riker, are running traditional campaigns.
The ruling means he will have to continue raising money, he said, but he plans to stick to the small donor model that U.S. Sen. Bernie Sanders, I-Vt., is using in his presidential bid.
“I believe folks are frustrated with the scale of privately financed races these days,” Zuckerman said.
He also argued in the suit that publicly financed candidates should be able to raise more money if they come up against a well-financed opponent, placing them at an unfair disadvantage.
U.S. District Judge William Sessions found the current spending limits constitutional, writing that it’s well established that “a candidate has no right to a level playing field with respect to fundraising.”
Attorney John Franco, who represented Zuckerman and the other plaintiffs, said he was not surprised Sessions declined to rewrite portions of the public finance law from the bench, but he suggested the Legislature should revisit portions of the law.
The prohibition on campaigning before Feb. 15 by publicly financed candidates is particularly arbitrary, he said.
Judge Sessions’ ruling on public finance came in a highly publicized suit that originated with 2014 lieutenant governor candidate Dean Corren, who challenged the constitutionality of Vermont’s public finance law after the attorney general found he had violated it and ordered Corren to pay $72,000.
The fine stemmed from an email blast sent by the Vermont Democratic Party on Corren’s behalf, which the attorney general said amounted to a $255 in-kind contribution. Publicly financed candidates are barred from receiving additional contributions after accepting public money.
Corren was hit with two $10,000 fines and ordered to pay back $52,000 in remaining public money that his campaign had when the violation occurred.
Even though their federal suit arguing that the public finance law is unconstitutional failed, Franco said Sessions’ opinion will bolster their case in Superior Court, where the fine is being litigated in a separate case.
In his decision, Sessions wrote that Vermont’s public financing law is constitutional as long as it’s “construed as allowing supporters to associate and communicate with publicly funded candidates.”
If the state courts apply the law in a way that “significantly restricts” that right to association, Sessions said, he will “revisit the constitutionality of the entire public financing scheme.”
The campaign finance law lays out a number of exemptions to the definition of a contribution, which are meant in part to protect the right of association and communication with supporters, Sessions wrote. Those include “access to party voter lists and voter identification information” and “political party payment for an event attended by three or more candidates.”
The Democratic Party email blast that triggered the fine falls into those exempt categories, according to Franco, and is therefore not a contribution. The emails’ value as a contribution derived from the party’s voter list, and the rally it promoted was attended by more than three candidates, he said.
Franco had already filed a motion in state Superior Court for the fine to be dismissed. He said he submitted a supplemental motion Thursday citing portions of Sessions’ federal court opinion.
“They really need to let this go,” he said, referring to the attorney general’s office.
Assistant Attorney General Megan Shafritz, chief of the civil division, said that’s not going to happen.
“From the office’s position the federal ruling doesn’t have any impact on the state case,” she said.
Judge Sessions made no ruling on the factual basis of the fine, and the email meets the legal definition of a contribution, Shafritz said. Corren’s campaign requested that the Vermont Democratic Party send out an email promoting his candidacy and provided the language it wanted used.
That amounts to coordinated express advocacy on Corren’s behalf and a contribution that a publicly financed candidate is not allowed to receive, she said.
