Last week in Vermont Right to Life Committee v. Sorrell, a federal appeals court, in a welcome move, finally asked the crucial question of whether a self-styled “independent” group was in fact independent. The Supreme Court’s naïve or disingenuous decision in Citizens United struck down the federal corporate spending restrictions while at the same time assuring us that independent spending, by virtue of its independence, could not corrupt candidates. Even accepting that proposition—however unrealistic—candidates and committees have worked tirelessly to push the envelope in terms of just how much “coordination” they could get away with under current law. A line was finally drawn last week by the U.S. Court of Appeals for the Second Circuit.
Following Citizens United, we have seen a deluge of spending by outside groups in federal and state elections. However, one would be hard pressed to characterize much of this spending as “totally,” “wholly,” or “truly” independent of candidates and party committees as the Supreme Court has demanded in past cases. Instead, outside groups have taken advantage of often lax laws and toothless enforcement agencies to collaborate extensively with candidates while still maintaining they have not “coordinated” within the meaning of the law. Voters are treated to the spectacle of Super PACs founded and run by candidates’ friends and family; candidates referring affectionately to such groups as “my Super PAC”; candidates personally fundraising for outside groups that then use the money to “independently” support the candidates; candidates posting b-roll footage online for use by outside groups in their “independent” ads. And then, there are the “hybrid” committees that make direct contributions to candidates while claiming to be independent enough to simultaneously run “independent” ads.
Most concerning in this circus, however, are attempts to impede any inquiry into whether outside groups have in fact “coordinated” their activities with candidates or party committee even under these often very permissive laws. This was the position of the plaintiffs in Vermont Right to Life Committee, which claimed that the Vermont Right to Life’s Fund for Independent Political Expenditures (FIPE) were independent as a “matter of law.” On this basis, plaintiffs argued, application of thestate contribution limits to FIPE’s fundraising was unconstitutional under Citizens United and related judicial authority.
Vermont Right to Life was a non-profit group that established two affiliated committees, Vermont Right to Life Committee (VRLC), a conventional PAC which made contributions and advised candidates, and FIPE, which claimed to make only independent expenditures. VRLC and FIPE had different bank accounts, and FIPE stated in its organizational documents that it was an independent‐expenditure‐only group. According to plaintiffs, any factual inquiry as to whether FIPE was truly independent had to end there.
Fortunately the district court did not simply accept this pronouncement at face value. It dug into the facts and found that FIPE was not separately incorporated, that the three Vermont Right to Life entities shared common management, and thatVRLC/FIPE officers had significant contacts with state candidates. Most damningly, it found a “fluidity of funds” across the three entities, raising the question whether the purportedly “independent” FIPE was effectively funding the contributions and activities of the conventional PAC, VRLC. Last Wednesday, the Second Circuit Court of Appeals affirmed the district court’s factual analysis, determining that the “independent” committee was “functionally indistinguishable” from VRLC given “the overlap of staff and resources, the lack of financial independence, the coordination of activities, and the flow of information between the entities.”
The case against independence was thus not a difficult one: it is absurd to claim, as the Vermont plaintiff did, that an “independent” committee can commingle funds with a conventional PAC and claim it is funding only independent activities. ButVermont Right to Life Committee is nonetheless an important decision because it is one of the first instances of a court making a factual determination about whether a purported “independent” group was indeed independent. Given the parade of “cooperating,” if not “coordinating,” Super PACs and candidates at the federal level, it was a welcome relief to see a court take seriously its responsibility to ensure that an “independent” group is in fact independent and to draw the line on the type of coordinated activity that clearly gives rise to potential quid pro quo corruption and public concerns about the integrity of our political system.
In the amici brief that the CLC filed with Second Circuit, we urged the Court to thoroughly review the factual record before endorsing FIPE’s claimed independence, and argued that the Supreme Court had never suggested that determining whether a specific expenditure is “independent” was not a question of fact. Although we do not agree with Citizens United’s holding that independent spending is by definition non-corruptive, we chose not to relitigate this seemingly settled point of law. But if indeed independence is to “immunize” outside campaign ads from corruptive potential, as the Supreme Court theorized, the courts should at least insist that the Super PACs and other groups running such ads are in fact “independent expenditure groups.” A court should invalidate the contribution limits applicable to their fundraising only insofar as those committees truly qualify for that designation. The Second Circuit in Vermont Right to Life Committee has thus laid down an important marker to define the boundaries of coordination.