One of the conundrums of campaign finance regulation is where campaign money ends and “pure” political speech begins. Free speech advocates are rightfully wary of making this distinction, because political speech and engagement always cost money. Moreover, when government regulates campaign money, it regulates campaign activity, which can unduly influence or undermine the very purpose of campaigns—that is, to regulate government. Nevertheless, most agree that in spite of the debate about the appropriate scope of campaign finance law, there are indeed areas of political money that may be appropriately regulated and political speech that may not be regulated.
But recent events in Vermont show regulation stepping into a largely unregulated area: e-mails.
Last year, Vermont Attorney General William Sorrell brought an action against Dean Corren, a candidate for the state’s lieutenant governorship who lost in 2014. Corren, because he accepted public financing for his campaign, was prohibited under state law from accepting other political contributions. However, Sorrell argued an e-mail blast sent by the Vermont Democratic Party in October 2014 that (among other things) invited it recipients to a Corren rally was a contribution to his campaign. Sorrell initially sought significant penalties, totaling $72,000, but after the Vermont legislature changed certain campaign finance laws he could not pursue such a hefty fine. The changes also altered a federal case brought by Corren against Sorrell, which was dismissed earlier this year.
Sorrell’s case against Corren is not quite so simple as an independent e-mail, but is well outside campaign finance norms. The Corren campaign had some input into the content of the Democratic Party’s e-mail—that is, what it actually said about Corren—triggering campaign coordination concerns. When a campaign coordinates by, for example, giving another organization a script for a television ad it will produce and distribute, the cost of the advertisement becomes an in-kind contribution to the campaign, triggering not only reporting requirements but usually contribution limits, which can easily be broken given the cost of a television ad. Still, proper coordination regulation still requires the activity in question to have monetary value that goes beyond de minimis before it raises the ire of a state’s attorney general or other agency.
Sorrell estimated the value of using the e-mail list in question at $255. Again, consider that Sorren sought $72,000 in fines for this. Though the penalty will not actually be that high if Sorrell wins the case, it continues in state court, already amounting to hundreds of thousands of dollars in costs.
Where Sorrell has begun to dig quite a hole, others are all too eager to help him dig deeper. Last week, the chair of the Vermont Republican Party sent a letter to Sorrell arguing that an e-mail from the Bernie Sanders presidential campaign to his nationwide list endorsing and soliciting funds for Chris Pearson, a candidate for the Vermont state senate, violated the same law as the Democrats’ e-mail for Corren. Thanks in large part to the Sanders endorsement and e-mail, Pearson raised nearly $80,000 in contributions of $100 or less.
Though Sanders’s e-mail list is no doubt valuable, the complaint struggles to argue merely how it should be valued— by its total value, value per use, or other factors. Far worse, there is no definitive guidance under Vermont law as to how anyone would measure value for reporting or contribution limits. Even assuming a large monetary value, the complaint offers no coordination theory whatsoever other than Pearson setting up an account with ActBlue to accept the funds Sanders raised for him. Illegal coordination, though, must involve input into the communication or fundraising itself, not simply reaping rewards from what someone is doing independently. Sorrell’s complaint against Corren neglected to balance the goals of coordination regulation against free speech; the new complaint against Pearson neglects to measure coordination at all.
In one of the most sheepish interviews of an attorney general ever filmed, Sorrell muses “how do you value… that?” while mulling the very valuable, but monetarily unmeasurable, technological advances in online fundraising. But this does not merely question new technology. Candidates—particularly incumbents—have long used their established prominence to raise money for other candidates and causes, whether through established campaigns or speeches. Some of these activities have ascertainable value, some do not. And though all are unquestionably valuable, it does not draw them into the realm of campaign finance law.
Campaigns and political organizations sell and rent e-mail lists all the time. When that happens, the value is quantifiable, and the transaction is disclosed (sometimes even in the press) or, if not, punished. However, simply because someone uses an established list to endorse or raise money for someone else does not suddenly make the speaker part of the beneficiary’s campaign, nor make independent speech into a political contribution. Even where coordination is properly defined, it must not sweep in low-value efforts, because a candidate’s work with parties and groups to win an election is not a corruption to be cured, but an integral part of building a political community—an end that reformers claim to defend.