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Attorney General Issues Guidance Regarding Independent Expenditure PACS

CONTACT: Megan Shafritz, Assistant Attorney General, (802) 828-3176

July 25, 2012

Attorney General William Sorrell announced today that in light of the U.S. District Court decision by Judge Sessions in Vermont Right to Life Committee v. Sorrell, and Plaintiffs’ appeal to the Second Circuit Court of Appeals, the Attorney General’s Office will follow the Court’s opinion regarding contribution limits for independent expenditure PACs. Accordingly, the Office will not enforce the $2000 contribution limit for those PACs that demonstrate they make only independent expenditures. “These independent expenditure PACs must continue to comply with Vermont’s registration and reporting requirements,” Attorney General Sorrell cautioned. “If investigation reveals that a PAC’s political activities are not entirely independent of candidates, the PAC will continue to be subject to Vermont’s contribution limits.”

Attorney General Sorrell has issued a guidance document that will be posted on the Secretary of State’s website. “By announcing the Office’s position on the issue,” he explained, “it is my goal to provide advance guidance to PACs and all participants in this election cycle and take meaningful steps to avoid potentially costly litigation.” Attorney General Sorrell will also consult with the Vermont Legislature when it convenes in January and will seek either legislative amendment or confirmation from the Legislature that Vermont’s contribution limits should continue to apply to all PACs, despite the likelihood of litigation.

“The Office is committed to vigorously and even-handedly enforcing Vermont’s campaign finance laws,” Attorney General Sorrell stated. “I remain deeply troubled by Citizen United’s unduly cramped understanding of the potential for corruption caused by the flow of large sums of money through all types of PACs in elections.” AG Sorrell believes that the better-reasoned view regarding the corrosive effect of independent expenditure PACs was expressed by the late Judge Michael of the Fourth Circuit Court of Appeals in his thoughtful and persuasive dissent in North Carolina Right to Life, Inc. v. Leake, 525 F.3d 274, 332-37 (4th Cir. 2008). Because groups making independent expenditures can corrupt and unduly influence candidates by wielding large sums of unregulated money, it is reasonable and should be constitutional to limit contributions to them. Nevertheless, until the courts clarify the issue, the Office will adhere to the opinion of the federal district court.

ATTORNEY GENERAL’S GUIDANCE
REGARDING INDEPENDENT EXPENDITURE COMMITTEES

Under Vermont’s campaign finance laws, a “political committee” or “PAC” is any entity or group of individuals that receives and spends more than $500 in a calendar year for the purpose of supporting or opposing a candidate in a Vermont election. Vermont’s statutes do not distinguish between a PAC that makes contributions to or coordinates with a candidate and one that conducts its activities entirely independent of any candidates. Thus, Vermont’s requirements regarding registration, reporting and contribution limits for PACs apply equally to all entities or groups that attain PAC status. In other words, all Vermont PACs must complete the registration process, file appropriate disclosure reports with the Secretary of State’s Office, and comply with statutory contribution limits.

Since the Supreme Court’s decision in Citizens United v. Federal Election Commission, 130 S. Ct. 876 (2010), a number of federal appellate courts have held that limiting contributions to PACs that make only independent expenditures is not constitutionally permissible. Consistent with these decisions, Judge Sessions of the federal district court of Vermont expressed a similar view in his recent opinion issued in Vermont Right to Life Committee v. Sorrell, Docket No. 2:10-cv-188, on pages 59-63 and 78. VRLC has appealed Judge Sessions’s decision to the Second Circuit Court of Appeals.

While the VRLC case is pending on appeal and until further guidance is received from the Second Circuit or Vermont courts, the Attorney General’s Office will follow Judge Sessions’s opinion regarding contribution limits for independent expenditure PACs. Accordingly, the Office will not enforce the $2000 contribution limit for those PACs that demonstrate they make only independent expenditures. Of course, such groups must continue to comply with Vermont’s registration and reporting requirements. Further, to be clear, if investigation reveals, as Judge Sessions found in the VRLC case, that a PAC’s political activities are not conducted entirely independently of candidates, the PAC will continue to be subject to Vermont’s contribution limits.

Dated: July 25, 2012

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